Journal of Criminal Law and CriminologyVolume 51Issue 1 May-June Article 4

Summer 1960

Psychoanalysis and the Criminal LawHelen Silving

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Recommended CitationHelen Silving, Psychoanalysis and the Criminal Law, 51 J. Crim. L. Criminology & Police Sci. 19 (1960-1961)

PSYCHOANALYSIS AND THE CRIMINAL LAW

HELEN SILVLNG*

Professor Silving is a Professor of the University of Puerto Rico. However, she is at present on,leave from the University while serving as Adviser to the Legislative Penal Reform Commission ofthe Commonwealth of Puerto Rico. Previously, Professor Silving was associated with the lawfaculties of Harvard and Yale.

This article presents an assessment of the impact of psychology upon two important areas ofcriminal law, (1) the problem of "responsibility" and (2) the question of what types of conductshould be treated as criminal. Professor Silving points out that psychoanalytic findings cast newlight upon many of the assumptions, methods and goals of criminal law, and that many of thesefindings can be utilized to improve the criminal law. She notes as well, however, that wholesale in-corporation of ideas contributed by psychoanalysis would be highly undesirable in the criminallaw, which must reflect the concern of a democratic society for individual liberties. Caution must beexercised, therefore, in evaluating the potential effect upon important individual freedoms of policieswhich appear desirable when considered only in the light of psychiatric discoveries. She concludesthat the teachings of psychoanalysis have much to contribute to the criminal law when they arethoughtfully weighed and selectively chosen on the basis of their consistency with the fundamentalaims of a constitutional, democratic society.

The author prepared this article at the special request of the Board of Editors in commemorationof the Journal's fifty years of publication.-EDroR.

The most significant contribution of psycho-analysis to the understanding of mental processesis discovery of unconscious mental life. The so-called "Unconscious" follows its own laws. Withinthe system "conscious," unconscious contents ap-pear "irrational." Since there is "communication"between the "Conscious" and the "Unconscious,"such "irrational" contents, of which man is un-aware and over which he has no control, intervenein his thoughts, decisions and actions and thusexercise an influence upon his life. In the light ofthis discovery, man no longer appears to be awholly "rational being."

This new "image of man" has given a distinctiveimprint to contemporary culture, just as variousother historical "man's images" have influencedand reflected particular cultures.' As each of thesehas shaped legal reality, so "man's image" asconceived by psychoanalysis today has a growingimpact upon legal development. It increasingly in-

* The views expressed in this article are exclusivelythose of the author. They do not reflect the opinions ofthe Penal Reform Commission.

Perhaps no single Biblical thought has summarizedJudaeo-Christian philosophy as adequately or de-termined its cultural impact as effectively as the ideaof man's creation "in the image of God." Other repre-sentative "images of man" of distinctive cultures areLuther's "free Christian man," Rousseau's man "bornfree," the "economic man" and the "rational man."

fluences legal thought indirectly through a varietyof channels, such as general and legal philosophy,ethics, and changes in social mores, as well asdirectly through the new knowledge of mental lifewhich it conveys. It throws a new light on "man"in the various capacities in which he functions inlaw: as law creator and enforcer, as addressee oflegal norms and as object of law enforcement.

Space limitations do not permit a comprehensiveevaluation of the impact of psychoanalysis uponall phases of jurisprudence and criminal law. Thefollowing discussion is thus necessarily selective.Basic methodological issues are treated only inci-dentally. Problems of the bearing of psychoanalysison legal philosophy and ethics affecting criminallaw cannot receive the full consideration they de-serve, and inquiry into the significant problem ofthe influence of psychoanalysis on development ofpertinent constitutional concepts must be omitted.I shall confine myself to a discussion of the impactof psychoanalysis on substantive criminal law, thatis, on the two fundamental problems which itpresents, that of "responsibility" and that ofappropriate selection of conduct to be proscribed.In each context, I shall point out the limitationsupon a full realization of psychoanalytic insight inlaw which are imposed by political and legalideology.

HELEN SILVING

RESPONSIBILITY

"Responsibility" is a moral or legal rather thana scientific concept. It is best defined as the con-nection adopted in ethics or in law between certainconditions, such as certain mental and externalfactual data (e.g., intent or negligence and deathcausation), and certain consequences, such associal censure, imprisonment, fine, compensation.Decision makers shape these conditions and conse-quences for legal purposes with a view to achieving

their preferred goals, the so-called "ends of criminallaw." As stated by Dean Paul K. Ryu, responsi-

bility is a "relational concept."' 2 This means thatthere is no absolute concept, state or quality of"responsibility." The conditions and consequences

constituting "responsibility" are not each a sepa-rate phenomenon or occurrence suspended in theair or a quality inherent in the individual. Rather,to each type of condition or conditions complexthere is assigned by law a particular type of conse-quence or a group of consequence types. In a ra-tional system of law this assignment is based onrational considerations, so that the conditions andconsequences are geared to each other in a soundmanner. Such rationality is judged from the stand-point of the goals which operation of the responsi-bility concept is expected to reach. The choice of"ends," as well as of the conditions and conse-

quences which are to serve the chosen ends, is inlarge measure limited in democratic society byconstitutional restrictions aimed at preservation offundamental rights of men.

This definition of "responsibility" suggests notonly the sphere of potential contribution of psycho-

analysis, as a science, that is, psychoanalytic psy-chology, to the shaping of a legal concept of re-

sponsibility but also the limitations imposed uponsuch a contribution. Psychoanalytic insight may bebrought to bear on the elements of rationalteleology implied in a sound system of responsi-bility. But it cannot resolve the normative prob-lems of choice, the choice of goals or of their properhierarchy, except perhaps indirectly by bringing to

the attention of decision makers the manner inwhich pursuit of a given goal would operate.Finally, as the goals themselves, considerations ofscientific teleology also must yield to constitutionallimitations, so that a method which is most ap-propriate scientifically may often have to be

sacrificed to fundamental liberties.

2PAUL K. Ryu, KOREAN CULTURE AND CRIMINAL

RESPONSIBILITY (Yale Thesis, 1958, on file in theLibrary of Yale Law School).

Problems of "responsibility," though closelyconnected with each other, may be divided forpurposes of presentation, into three topics: (1) thegoals or "ends of criminal law"; (2) the conse-quences of responsibility or "sanctions"; and(3) the personal conditions of responsibility or"imputation." 3

(1) The "Ends of Criminal Law"

The misunderstanding between lawyers andpsychiatrists, abundantly discussed in the litera-tures of both law and psychiatry, begins at thestage of "ends" to be pursued. It is thus importantto clarify further the methodological problem inissue. Treatment of specific "ends," retribution,reformation, community protection, etc., will beomitted.

The "ends of criminal law" are ethical, politicaland social ideals, that is, they are normative andnot scientific conceptions. The choice of normativeends-provided that they do not involve dedica-tion to an abstract purpose at any cost-to be"rational" should take account of pertinent facts,particularly those bearing on the questions ofwhether a given end can be reached and, if so,what is the cost of reaching it. But a normativechoice, adoption or rejection of an "end" as a"value," cannot be made by a simple applicationof reason to facts, for values neither rationally flowfrom facts nor are automatically invalidated byfacts. The function of science in the process ofchoice lies in its use as a tool, a fact-finding instru-ment, where facts have been normatively decidedto be pertinent. Thus, in considering adoption ofan end, decision makers may take account of thefact-finding of psychoanalytic psychology thatconscious pursuit of that end may be impeded byunconscious judicial and public motivations atvariance with those consciously professed. Thedecision makers may or may not decide that themere fact of a goal being psychologically rooted inor impeded by a motive deemed objectionable doesnot nullify its value. This is itself a matter ofnormative decision. If they decide that the value isnot thus ipso facto nullified, they should furtherconsider, in the light of science, whether it is pos-sible by judicial and public education to eliminateor modify the operation of the impeding uncon-scious forces. The decision makers may make finaldecision regarding adoption or rejection of the goal

3 To be accurate, the objective parts of definitions ofcrime and the tests of ascertaining the presence ofobjective crime elements also form part of the "re-sponsibility" concept.

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dependent on the answer to this question. But theultimate decision upon adoption or rejection of an"end" must be theirs, for it is a normative decision.

It is thus fallacious to assume that the "ends ofcriminal law" can simply be logically derived fromscientific findings of psychoanalytic psychology re-garding the motives which prompt man's actionsand reactions. But this is precisely the methodwhich has often been used in the numerous lawreform proposals advanced in recent decades. Fre-quently, what appears to be a conflict between thelegal and the "scientific" approach is in fact a con-flict between legal and medical ethics. Confusionmay be avoided by clarity regarding the exactline of demarcation between scientific finding andethical choice. An example may illustrate themanner in which separation of the "scientific" fromthe "ethical" aspects of choice should be main-tained.

The first issue before decision makers entrustedwith formulation of criminal law policy is choice ofa basic ethical approach. That choice may or maynot be made without regard to any factual orscientific information. The problem of whether thedominant ethics should be absolute or utilitarianethics is implied in all discussions concerning"ends"; however, this problem is never verbalizedin this country,4 utilitarianism being tacitly as-sumed to be a self-evident approach even by thoseprofessing adherence to various religious views.5

The psychoanalytic information that may or maynot be regarded as pertinent to the choice betweenabsolute and utilitarian ethics concerns the roots ofethical principles. Psychoanalysis has traced thepreferred symbols of absolute ethics to psychologi-cal origins in motives traditionally identified withvices. Self-sacrifice, altruism, generosity, absolutetruthfulness have been shown to originate in un-

4 Contrast with this approach the elaborate discus-sion of the type of prevailing ethics by the Bundes-gerichtshof of the German Federal Republic. Decisionof the Bundesgerichtshof (Great Senate in CriminalMatters), February 17, 1954, 6 B.G.H.St. 46 (1954),holding that the question of whether sexual intercoursebetween flanc~s constitutes "lewd conduct" withinthe meaning of §§ 180, 181, Penal Code (Pandering),must be determined by objective ethical norms andnot by either community standards or communitymores. For criticism of this decision see Bockelmann,Zur Strafbarkeit der Kuppelei, JuRis'nscyE RmmscHAu361-364 (1954); Jescheck, Zur Frage der' K-uppeleigegenf~ber Verlobten, MONATSSCmur' Fet DE uTscHEsRECr 645-649 (1954).

5 Another problem which decision makers may haveto face is whether it is proper for them, in a democraticcountry adhering to the principle of separation ofstate and church, to apply their religious preferencesto law. Such separation, of course, does not necessarilyimply adoption of utilitarian ethics.

conscious processes governed by the "pleasure-pain" principle and often grow out of motives thatare diametrically opposed to the noble sentimentsapparent to the bearer himself as well as to others.Of course, psychoanalysis, as a science, does notavow any particular ethical preference. Its ownoperational concepts, the "reality principle," the"superego," incorporate the idea of modification ofthe "pleasure-pain" principle. Psychoanalyticwriters disclaim that any inference as to the valueof ethical principles may be drawn from theirorigins. But the fact is that whether or not suchinference may or should be drawn is itself a norma-tive ethical rather than scientific problem. Withinthis context, it may or may not be pertinent tonote that absolute ethical ideals, by definition, defy"proof" or "disproof" by reference to origins.

To arrive at a "rational" system of ends, it isnecessary to view the pertinent facts and factorsin context with each other rather than treat eachas an isolated phenomenon. When this method isapplied, it will appear that utilization of psycho-analytic knowledge in law presents a distinctiveproblem not to be equated with that obtaining inother fields. An example may illustrate the point.While, as suggested above, e.g., retribution6 is notnecessarily eliminated as an "end of criminal law"on the sole ground that--as has been shown bypsychoanalytic writers-it is psychologicallyrooted in vengeance, awareness of such motivationmay be most pertinent to its choice as an "end."Psychoanalytic insight into such motivation con-stitutes an important contribution to law. But inlegal context the inquiry must be extended to otherpertinent factors. For instance, one might inquireto what extent a defendant who is the victim ofjudicial "vengeance" disguised as "retribution"may obtain legal relief. The law possesses varioustools of control aimed at prevention of mob justiceand judicial error. Appellate judges who may neverface the accused perhaps do not identify them-,selves with him in the same degree as a trial judge.It may be worth exploring whether the psycho-logical relationship of appellate judges to the trialjudge may not have a stronger impact on theirdecision than their relationship to the accused. It

Modem "retribution," though rooted in "venge-ance," cannot be simply identified with vengeance.Its meaning and function in modem law will be dis-cussed in a separate paper.7 On this, see Reik, Gesidndniszwang und Straf-bedarfnis, in PhOBLEs DER PSYCaOANALYSE UND DERK i.tUOLOGIE 146 (1925); ALExANDER & STAu33,T)E CRIIAL, T=E JUDGE, AD r Pusu~c 218(rev. ed. 1956); RBwALD, SociErv AND iTs CiR=,ALs202 (transl. T. E. James 1950).

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HELEN SILVING

is important to remember that historically the

trial judge was the "accused" on appeal, forjudicial review grew out of a "trial" of trial judges.Legal "justice" cannot be fully equated with indi-vidual or family justice.

The choice of both ends and means in a demo-cratic society must always remain subject to

limitations imposed by the demands for preserva-tion of fundamental political and ethical principles.In evaluating an "end of criminal law," it is thus

essential to visualize the effect of its realizationupon individual liberties. For instance, while there

can be no serious dispute over the desirability of a

policy of reformation and treatment, advocated by

many psychiatrists, account should be taken, in

following this policy, of the political effects of an

extreme treatment-oriented policy. A by-productofsuch policy has been extension of the notion of the

State as parens patriae into the criminal law for

adults. Psychiatrists often equate the State with a

"parent"-a just, unjust, loving or hating parent.8

Of course, such equation presumably purports to

describe particular reactions of neurotic offenders

to the State. No objection can be raised against the

equation so long as it is confined to such descrip-

tion of neurotic reactions. But it is dangerous toextend it further by creating a general, presumablyideal, image of the State as a "good parent" or of a

judge as a "just father." When carried over into

political or legal ideology, the equation tends to

support a distorted, "paternalistic," totalitarianideal of State in the minds of men. Mature, free-

dom-loving men neither deify nor personify the

State. They look upon it critically as a utilitarian

device, an instrument serving accomplishment of

certain limited and well-defined community ends.

But it may be difficult to maintain this democratic

impersonal concept of State when an altogether

different anthropomorphic picture of State is used

in "treatment" context. Though the psychiatrists'

demand for treatment of offenders is meritorious,policy makers must never lose sight of the fact thattreatment imposed upon law breakers under State

authority cannot be equated with a medical task,as generally conceived.

8 See, e. g., Watson, A Critique of the Legal Approachto Crime and Correction, 23 LAW AND CONTEIU'. PROB.611, 627 (1958). And see Guttmacher, The PsychiatricApproach to Crime and Correction, 23 LAw A") CON-TEpr. PROB. 633, 647 (1958), opposing preemption ofthe judicial function by psychiatrists on the ground thatthe judge as a "father figure" is "worthy of preserva-tion by society."

(2) The Consequences of Responsibility: Sanctions

As we reach the problem of appropriate meanstoward the chosen goals, the potential contributionof psychoanalytic knowledge to law gains ground.But in this area there is greater disagreementamong psychiatrists than in the area of goaldetermination. Some psychiatrists would like tosee punishment entirely abolished and offendersclassified by psychiatrists, not by judges, into twogroups, those who should be treated and those whoshould be confined indefinitely.9 Others wouldadmit application of punishment to special groupsof offenders for reformative or deterrent purposes. 0

The wisdom of granting psychiatrists a broaddiscretion in exercising judgment as regards con-finement of a nonpsychotic offender for the re-mainder of his life, regardless of the crime for whichhe has been convicted, has been questioned." Butour law itself is making increasing concessions tothe spokesmen of the law's "sister sciences" for agreater measure of control over disposition andtreatment of offenders. Within the scope of therelatively indeterminate sentence device, there isappearing upon the legal scene the board of ex-perts, replacing the court as sentencing authorityand endowed with discretion in manipulating treat-ment methods and with power of extending at anytime (within the maximum set by law) the term ofsentence.12 The new trend raises considerabledoubts in the minds of those who believe thatman's freedom-not completely forfeited by con-viction-is better safeguarded where the sentencingpower is more narrowly limited by law and wieldedby independent judges who are used to thinking interms of legal categories of jurisdiction, limitationof power and due process, than where such poweris broadly defined and exercised by an administra-tive body composed of men who by training andprofession are oriented to welfare rather than to

social freedom. The sex psychopath laws, which9 See, e. g., KARL A. MENNINGER, TIHE HUmAN

Mnm 448-49 (3d ed. 1945); ZILBOoRG, THE Psy-CHOLOGY OF THr CRIinwAL AcT AND PuNIsHMENT

(1954).10 Waelder, Psychiatry and the Problem of Criminal

Responsibility, 101 U. PA. L. REv. 378 (1952); ALEx-ANDER & STAUB, op. cit. supra, note 7, at 210-211.

"See Wertham, Book Review (of ZirLBOORG, op.cit. supra, note 9), 22 U. Cm. L. REv. 569 (1955);also Psychoauthoritarianism and the Law, id. at 336(1955). Compare also a sociologist's critique, Hakeem,A Critique of the Psychiatric Approach to Crime andCorrection, 23 LAW AND CO--=M?. PROB. 650 (1958).

12 See particularly the California Adult Authority,§ § 5075-5094, California Penal Code, West's AnnotatedCalifornia Codes (1956), as amended.

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deliver .into the hands of experts for an indefinitetime even minor sex offenders often not convictedof any crime, seem to frighten the experts them-selves."

There is practical unanimity on the superiormerits of psychiatric and educational treatment-provided that it can be used in a given case-, ascompared with imprisonment. Of course, theessence of a sanction lies in its involuntary nature,and psychiatric treatment practiced on a com-pulsory basis presents certain fundamental diffi-culties. Since it may produce profound changes in aman's personality, it is perhaps a more seriousintervention into his private sphere than is im-

prisonment. Moreover, from a psychiatric point ofview, many believe that a compulsory treatmentpromises no success.' 4 Our law has devised aningenious method of reaching a compromise so-lution between theschemeof imprisomnentand thealternative of treatment: probation, which permitsthe judge to make treatment a condition of pro-bation. Moreover, in England, wisely, probationrequires the prisoner's consent,15 and the draft of anew German Penal Code singles out psychiatrictreatment as a condition of probation which can-not be imposed without consent of the proba-tioner.'

Psychoanalytic writers have called attention tocertain specific problems raised by the unconsciousreactions of various offender types to conventionalcriminal law methods. In this area psychoanalyticfindings have been most instructive in showingthat several of these methods often promote thevery factors that lead to crime. Psychoanalystshave dramatically described the manner in which"the criminal from a sense of guilt" unconsciouslyschemes to achieve being punished. He does that inorder to secure atonement for an imaginary crimeof childhood and to attach his guilt feelings for

"3 See KARPMAN, THE SEXUAL OFENDER AND HisOFrENSES 233-34 (1957).

14 On this problem see BITISH JOURNAL OF MEDICALPSYCHOLOGY, vol. 17 (1938). Among sociologistsopposing treatment on an involuntary basis, seeBARNES & TEETERs, NEw HORIZONS IN CRIMINOLOGY592 (3d ed. 1959).

5 Criminal Justice Act, 1948, s. 3 (11 & 12 Geo.c. 53). On the therapeutic value of consent, see Clifford,The Role of Probation in the Treatmenwt of Offenders,Tm Roos OF CrA 120, 122 (East ed. 1954).

1' The reason advanced for adoption of this rule isthat treatment cannot be fruitfully applied on aninvoluntary basis. See ENwuR DES ALGESEINENTEIlS EmES STRAFGESETZBUCHS (Verlag des Bundes-anzeigers 1958), § 78(2), and comment at p. 79.

such non-existent crime to something real.17 Inthis scheme, law enforcement agencies, believed toassist in the maintenance of the legal order,actually serve as unwitting tools of the offender.Psychoanalysts have pointed out that imprison-ment, which places the offender in a position ofutter childlike dependence on guidance, frequentlypromotes the very infantile drives, the imma-turity, from which the crime arose. They havecalled attention to the fact that harshness as aresponse to crime waves, generally believed to actas a powerful deterrent factor, actually tends to in-crease criminality, for excessive punishment, indoing violence to the offender's "sense of justice,"which in his Unconscious takes the form of a lextalionis, is interpreted by him as advance paymentfor future violations, a credit on future crime. 8

It should be interesting to secure the expertopinion of psychoanalysts on the impact of the in-security element in the indeterminate sentenceupon the reformation process of the offender.19

The most constructive contribution of psycho-analysis to reformative penology is discovery of thepsychoanalytic method of treatment, which makesit possible to reach certain types of offenders whoare not accessible to conventional therapeuticmethods, that is, neurotic offenders.'0 Psycho-analytic writers have shown that recidivism, es-pecially stigmatized by law, does not automaticallyindicate greater depravity of the offender butindeed points to a greater likelihood of mental ab-normality than does casual criminality.2' Whererecidivism is "an intrinsic part or natural phase of

17 Freud, Der Verbrecher as Schuldbewusstsein,X GESAmmELTE ScmuFTEN, Internationaler Psy-choanalytischer Verlag 312.

18 ALEXANDER & STAUB, op. cit. supra, note 7, at54; MIRA Y L6PEZ, MANUA DE PSICOLOGf& JURfDIcA91 (4th rev. ed. 1954).19 In recommending such sentences, Professor Glueck

stressed the fact that indeterminateness itself is adeterrent. Sheldon Glueck, Principles of a RationalPenal Code, 41 HAv. L. R1v. 453 (1928). It is notquite clear in what manner or upon whom this de-terrence is expected to operate.

20BERNARD GLUECK, PROBATION AND CRIMINALJUSTICE 197-220 (1933).

211bid.; see also Glover, Prognosis or Prediction:A Psychiatric Examination of the Concept of 'Recidi-visit', 6 BRITs JoURNAL oF DELINQUENCY 116(1955-56); compare also Conclusions of Section IIIof the Tmnn INTERNATIONAL CONGRESS ON CammuoL-OGy, London, 12th-18th September 1955, in StumxOF PROCEEDINGS, published by the British OrganizingCommittee (1957) at 221, recognizing that "mentaldisease and abnormal personality traits play a muchgreater part in recidivism, and especially in grave andpersistent recidivism, than in casual criminals."

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HELEN SILVING

... disease,"' - conventional reactions to recurrence

of crime, such as automatic aggravation, revoca-tion of probation and incidental interruption oftreatment, appear unreasonable. While the grave

problem of recidivism cannot be regarded as re-

solved, a foundation has been laid for careful re-

examination of this legal category.

(3) Personal Conditions of Responsibility: "Impu-

lation"1

In addition to the objective elements of crime,

responsibility in the sense of amenability to sanc-

tions requires the presence of certain subjectivepsychological factors: states of mind, as appearing

in definitions of crimes, and a general mental apti-

tude of the offender. The former are known as

"intent" and "negligence," the latter is called"'mental capacity." The new image of man which

psychoanalysis has introduced into contemporary

culture sheds new light on both factors.Formerly, man's personality was compart-

mentalized into various distinct and separate

sections-reason, will, emotions-and each of his

acts constituted an independent event solely con-

nected with a particular mental episode specifically

bearing upon it. Psychoanalysis has shown that

this picture of man's personality and of his be-

havior is fallacious. In its light, man's reason, will

and emotions are inter-connected. Specific con-

scious expressions of any of these elements arenever the sole determinants of his conduct. Rather,

there is accumulated in man's Unconscious the

total history of his life experience dating back tohis infancy. The contents of the Unconscious pene-

trate his conscious life expressions; conversely, his

Unconscious is influenced by his conscious experi-ences. The conscious present and the unconscious

life history of man are combined in his personality,

which constitutes an indivisible dynamic unit.

Each of man's acts emanates from his unitary total

personality rather than from a single autonomous

state of his mind.In the following I shall attempt to show how this

new interpretation of mental life affects the legal

doctrines of the "psychological factors of crime"and of "mental capacity."

22 Glover, supra, note 21, at 122.23 "Imputation" is ascription of responsibility for

an event to an individual. This term, as used in thecriminal law doctrine in civil law countries, is normallypredicated upon the objective occurrence of the event,causation by the individual, and a certain mentalattitude of the individual (who must be "imputable,"that is mentally capable to be a fit object of imputa-tion) toward the act or its consequences.

PSYCHOLOGICAL FACTORS OF CRIME

"Intent"

The law proceeds on the assumption that anygiven "intentional" act is ascribable to a particular"intent," which psychologically appears as an iso-lated event or at least as an event separable fromother psychological phenomena. It thus singles outfrom the dynamic continuity of a human life oneact and a particular intent directed toward it ortoward its consequences. Inquiry into the totalpersonality development which culminated in theparticular act in issue, indeed even into the specificmotive which produced the intent to carry out theact, is barred.2 Our law further assumes that if theintent is not a spontaneous growth but insteadfollows a certain pattern of continuity, then it isipso facto more reprehensible, "premeditation" in-variably adding to the wickedness of intent.

The modem psychological conception of eachhuman act as emanation of man's total personality-which is a dynamic, historically developed unit-makes the "isolated intent-act" position appearhighly unrealistic. Nor does "premeditation" asconceived by law in itself present a distinctivepsychological category; often it is not discerniblefrom intent. Psychological differences rather appearin the motives of action. Hence, there is noticeablean increasing demand for recognition of the signifi-cance of "motive" in law. But "motive," as knownin psychology and psychiatry, has a broader con-notation than is attributed to this term in juris-prudence. In the latter discipline, as in everydaylife, "motive" consists of the conscious reasons-or"rationalizations"-which are believed to producethe intent to commit the act. In modern psychiatry,on the other hand, motive is at least partly un-conscious and is not a detached phenomenon butrather part of a continuous process of evolution.25

It is doubtful that a proper assessment of such"profound" motive by psychoanalytic methods isfeasible within the framework of legal proceduresfor the establishment of "responsibility." 2 In anyevent, the legality principle, which is a most im-portant safeguard of liberty, bars assigning to"motive" in its full psychological sense the place it

24 Motive has only evidentiary value, except whereit is made a part of the definition of a crime.

5 KARL A. MENNINGER, THE HuMAN MIND, op.cit. supra, note 9, at 446.

26 Theoretically, profound motives may be consideredtoday within the procedures of sentencing and execu-tion. But it is doubtful that these procedures can bedeveloped in such manner as to permit the techniqueof a significant profound analysis to function withintheir framework.

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deserves on scientific grounds. Crime, that is, bothits external and its psychological elements, must bedefinitely described in abstract terms in advance ofits commission, lest a defendant be placed at themercy of the arbitrariness of his judgesY Pro-found, unique, untypifiable motives do not lendthemselves to be made part of abstract definitionsof crime. This means that such motives may beconsidered at the trial stage only within the con-text of "mental capacity."23 Conscious "motives"have gained ground in substantive definitions ofcrime, particularly in the law of homicide, as wellas in the general area of mitigation grounds, incivil law countries, "premeditation" receding inimportance or being entirely eliminated. 3

"Negligence"

The conventional legal concept of "negligence"presents a most interesting psychological phe-nomenon. In it, conscious and unconscious factorsare not differentiated for legal purposes. Thatwhich "ought to be known" is deemed equivalentto that which "is known." Advertent and inad-vertent negligence are treated alike. It appears asthough the law anticipated the concept of "un-conscious knowledge." Indeed, inadvertent as wellas advertent negligence have been traditionallyclassified as "states of mind," which is justifiableonly in the light of psychoanalytic doctrine."0

Significantly, the need for a clear differentiation ofadvertent and inadvertent negligence appears tobe increasingly felt precisely as psychoanalyticknowledge is brought to the attention of lawyers.3'

The question has been posed whether it is justto punish a man for conduct the risk of which has

7The legality principle is an essential of the "ruleof law," guaranteeing the security and peace of mindof citizens. Its importance must not be underratedprecisely in the light of psychoanalytic knowledge.28 The dubious aspects of the differential treatment

of the trial and sentencing stages in our law and thequestionable features of a personality oriented criminallaw will be discussed in a separate paper.

On this see Silving, Euthanasia: A Study in Com-parative Criminal Law, 103 U. PA. L. REv. 350, 360-368 (1954).

30 Some writers deny that negligence is a "state ofmind." On this see Edgerton, Negligence, Inadvertence,and Indifference, 39 HAiv. L. REv. 849, 852 (1926).

3"The concept of "negligence" presents specialdifficulties within the scope of Welzel's celebrated"teleological action doctrine." According to thisdoctrine, the fault of the negligent actor lies preciselyin his failure (omission) to "direct his conduct teleologi-cally" as required by law. WELZEL, DAs DEurzscmSTa. --Avci 32, 110 (6th ed. 1958). While Wezelapparently has not been influenced by psychoanalyticthought, his doctrine of the essential unity of psy-chological and external elements of crime meets inpart certian psychoanalytic findings.

never entered his conscious mind. Alexander andStaub suggested that since there is communicationbetween the Conscious and the Unconscious, athreat of punishment for inadvertent negligencemay, through the medium of man's Conscious,enter his Unconscious and deter dangerous acts bybringing the danger to his unconscious knowledge. 3

This utilitarian consideration does not dispose ofthe moral issue presented by punishment of con-duct not consciously "known" to be dangerous.

Differentiation in law of negligent conduct de-pending on presence or absence of consciousnessof risk is essential. Only when committed in aware-ness of risk can an act be blameworthy and hencedeserve punishment. However, the law cannotdisregard the danger inherent in conduct express-ing an unconscious tendency to produce harm.The proper solution seems to lie in a differentiationof the sanctions to be imposed into those expressingcensure and those aimed at correction. This solu-tion may be fitted into a scheme for isolation anddifferentiation of sanctions first devised by CarlStoos" and incorporated in the 1893 Project of aSwiss Penal Code. The scheme, known under thetechnical name "dual-track system" (Zweispurig-keit), has since been adopted by numerous civillaw countries." It realizes a special type of "rela-tional responsibility."-" Punishment is imposedupon those "guilty" of censurable conduct, whereas"security measures" are applied for preventive

22ALEXANDER & STAuB, op. cit. supra, note 7, at

79, 129-131.3 See Exposg des Motifs de l'Avant Projet de 1893

(Basel-Geneva 1893). See also SToos, DER KAMPGEGEN DAS VERB1EEHEN (1894); Die sicherndenMassnalimen im Entwurf zu elnem ScrweizerischenStrafgesetzbuck, 17 ScmwslzEuscuE ZErrscmR= FURSTRAPREcHT 380 (1904). For further citations seeJihulNEZ DE ASUA, Las Penas y las medidas de seguridad,in 2 EL CtauNALISTA, (2d series) 175, note 4 at 178(1958).

"Swiss Federal Penal Code, 1937; Italian PenalCode, 1930; German Penal Code, as amended in 1933,present text of Sept. 1, 1953. For further examples seeScn6NKE, STRAFGESETZBUCH, Ko m NTAR 127-128(7th rev. ed. Schr6der 1954). The "European penalreform movement" which promoted the "dual-tracksystem" first focused on the fight against recidivismand habitual criminality. As indicated above, thisarea of law requires careful reexamination. The dual-track system, however, generally represents the ideathat punishment is a proper sanction for those "re-sponsible," whereas measures are appropriate for thosenot "responsible" but dangerous to themselves orothers, e.g., those acquitted on the ground of insanityand alcoholics who have committed crime. For citationof international congresses which discussed the subjectsee SCH6NKE, supra, 127-128; also Jim9NEZ DE AsfiA,op. cit. supra, note 33.

35 See Ryu, op. cit. supra, note 2, also discussing the"dual-track system."

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HELEN SILVING

and protective purposes to those whose conduct,though not censurable, is dangerous.36 I believethat such a scheme may be used to advantage tostress the significant difference that exists betweenadvertent and inadvertent "criminal" conduct.Only advertent negligence should be punished.Those who breach the law inadvertently shouldbe subject to measures of education and cure notinvolving moral censure but directed and limitedto furthering advertence of danger.? It is importantto add that "measures" in a democratic countrycan be imposed only where the harm resulting frominadvertence is serious; moreover, such "measures"must be administered by judges pursuant to re-quirements of the "rule of law."' '

From this evaluation of inadvertent negligencefollows a need for reassessment of the legal treat-ment of "crimes aggravated by the result."These are crimes in which the consequences exceedin gravity those intended by the offender. In orderto prevent punishing the offender for consequencesnot attributable to his "guilt," Germany amendedher Penal Code so as not to hold the actor re-sponsible for unintended consequences unless hebrought them about "at least negligently." 9

Here, as generally in the law of negligence, nodistinction is drawn between advertent and in-advertent negligence. The policy implicit in theabove stated position indicates that the Germanrule should be modified to make the actor puni-tively responsible only for those consequenceswhich he brought about at least by advertentnegligence.

36The draftsmen of the Project of a German PenalCode believe that a pure law of "guilt" can be main-tained only where there is a separate system of "meas-ures." See ENTWURF DES ALLGEME"NEN TEins ENIESSTRAFGESETZBUCHS, op. cit. supra, note 16, at 84.

17 The measures suggested here for inadvertentnegligence resulting in harm are psychoanalyticallyoriented education and, if consistent with the actor'sfreedom to accept or reject treatment, also treatment.Methods of inducing acceptance of treatment shortof actual punitive coercion are, e.g., withdrawal of alicense of an inadvertently careless driver. On desira-bility of corrective treatment rather than punishmentin cases of inadvertent negligence see HALL, PRINCIPLESor CRx NA LAW 245-46 (1947).

38 Application of special legality rules to measuresis an important feature of the recognition of theirdistinctiveness in civil law countries. Contrast withthis approach our American method of non-differentialtreatment of punishment and measures, which hasresulted in indiscriminate administrative applicationof "measures," presenting a serious danger to individualliberty.

11 § 56, German Penal Code, added Aug. 25, 1953(text of Sept. 1, 1953, B. G. BI. pt. I, at 1083). Fortranslation of the provision see Silving, Euthanasia,supra, note 29, at 361.

The law draws a distinction between "negli-gence" and "accident." Some penal codes of civillaw countries, indeed, expressly exclude responsi-bility for "accident"-"caso fortuito,"'' "meroaccidente."4' A Spanish commentator significantlynotices that, the incidents of responsibility beingenumerated in the penal code, such express exemp-tion of situations in no way comprised in theenumeration would seem superfluous, as is expressexemption today of responsibility of animals orfor death by lightning.42 But the fact is that the"fortuitous case" or "mere accident" is felt notto be clearly distinguishable from "negligence,"and the history of the distinction, as the samecommentator remarks, is marked by an "absoluteconfusionism." Psychoanalysis may help to reducethe significance of the distinction to functionallimits. In its light, a human act which causes harmis seldom "accidental"; however consciously"unintended" by the actor, the harm may havebeen "intended" by him unconsciously. Thus,"accident" shades into inadvertent negligence.Even death by lightning may be unconsciouslyintended.? Psychoanalysts have hence suggestedthat the "accidental actor" be held responsible. 44

No psychoanalytically oriented lawyer can objectto some form of legal reaction to "accidental"conduct where the harm caused is a very seriousone. An "accidental" killer prima facie presents adear and present danger to his fellow men, andit is certainly not more excessive to demand thathe cooperate in an attempt at avoiding futurefatal accidents than it is to require a person tosubmit to vaccination or to a quarantine. But, asin the case of the inadvertently negligent actor,"responsibility" should imply no moral censurebut consist of a "measure of security and cure"and be confined to such intervention as is neces-sary to accomplish the curative and safety purpose.Differentiation in inadvertent conduct between"negligent" and "accidental" acts is, nevertheless,justified. Traditionally, the former are marked bya high degree of risk and foreseeability of harm. 4

40 Art. 45, Italian Penal Code.41 Art. 8(80), Spanish Penal Code.421 QuiNTANo RxpoLms, ComnrmNnRIos AL CODIGO

PENAL 123 (1946).43 This example, used by BRENNER, AN ELEMENTARY

TEXTBOOK Or PSYCHOANALYSIS 150-151 (1955), issingularly responsive to Ripolles' query, supra, note42.

"4 ALEXANDER & STAUB, op. cit. supra, note 7, at130.

45 The standard of foreseeability and care in criminalnegligence cases is fairer to the defendant in, e.g.,the German law than it is in our law. That standardis both subjective and objective, the individual not

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In the case of an act resulting in serious harm, thedifference between inadvertent negligence andaccident will be given effect within the context ofthe choice of the measure to be applied. Also tobe considered is further limitation of the scopeof applicability of measures where the act is"accidental" rather than inadvertently negligent,e.g., measures might be used in "accident" casesonly where the "accident" results in death or seri-ous bodily harm.

MENTAL CAPACITY: "IMPUTABILITY"

The problem of defining "mental capacity" hasbeen the object of a vigorous controversy in whichlawyers, psychiatrists and sociologists have re-cently participated. The debate has advanced ontwo levels. The issue on one level has been theproper test for exempting an accused from re-sponsibility on the ground of mental incapacity.The issue on the second level has been a proposaladvanced by a group of psychiatrists that every-one, whether or not mentally sane, be held "re-sponsible" for the consequences of his acts,"responsibility" meaning amenability to psychi-atric treatment or indefinite confinement; thiswould render formulation of any test unnecessary.

"The Mental Capacity Test"

The debate over the first mentioned issue hasfocused on the so-called McNaghten rules46 whichhold an accused not responsibile if, due to mentaldisease, he did not know "the nature and qualityof his act" or that it was "wrong." Psychiatristshave challenged this test on the ground that itproceeds from a now outmoded view of the humanmind as functioning in distinct parts or sections,reasoning being separated from volition and feel-ing. This "faculty-psychology" approach-theysay-is incompatible with the now prevailingconcept of man's unitary personality.

Under the influence of such psychiatric criticism,on both sides of the Atlantic new rules were formu-lated. In Spain a Law Revision Commission underthe chairmanship of the author of PsicoAkisIsCRIMINAL,47 Luis Jim6nez de Asfia, accepted a

being held responsible beyond a measure of care ofwhich he was personally capable, as well as in excessof such measure if his personal capacity exceeds thatof the average citizen. See MAYRAcH, DEuTscHEsSTmRxEcHT, ALLGEMEINER TEiL 491-492 (1954).

S6 McNaghten's Case, 10 C1. & F. 200, 8 E.R. 718[1843].

47 JnItz DE AS6A, PScOANALISIS CRnaNAL(1940).

formula suggested by a psychiatrist member ofthe commission, Dr. Jos6 Sanchis Banifs.4s TheSpanish test exempts from responsibility simply"the alienated" (enajenado), adding "a personwho is in a state of temporary mental disturbance"(el que se halla en situaci6& de trastorno mentaltransitario).4 The ground advanced for choice ofthe one word test, "entajenado," derived from thecommon language rather than from scientificvocabulary, ° was the commission's desire toavoid involvement in problems of controversial andchanging nosology.51

In the United States, Judge Bazelon formulatedthe celebrated Durham rule, 52 which defines mentalincapacity exempting from criminal responsibilitysimply as "mental disease or defect," adding as aqualifying factor the so-called "product-test":the mental disease or defect affords an exemptiononly if the act was "the product" of the disease ordefect. It may be advisable to dispose first of the"product" aspect of the Durham test, for thisaspect could be easily eliminated, as suggested bythe Spanish rule. The "product" test, undoubtedlyderived from "the offspring or product" test ofthe New Hampshire rule,-" formulated at a timewhen "faculty psychology" was still dominant, 4

is based on the notion of that psychology that ahuman act is the product not of one's entire per-sonality but of particular personality portionsseparable from others. As correctly pointed out byjudge Biggs, this test "will only lead to the fallaciesof monomania if the courts permit it."51

Criticism of both the Spanish and the Durhamtests must rather focus on the main concepts ofthese tests. Before commenting upon them, itmight be useful to state what precisely is theissue to be resolved by a test. The law is not con-cerned with the medical definition of "insanity"

48 See JmfmEz DE AStA, LA LEY Y EL DELITO,PaINcirios DE DEREcHO PENAL 371, 378 (2d ed. 1954).

49 Art. 8, subdiv. 1, present Spanish Penal Code(1944).50 The scientific term is rather "alienado."51 IMNEZ DE AStIA, LA LET Y EL DEL1IO, op.

cit. supra, note 48, at 371.52 Durham v. United States,' 214 F.2d 862 (D.C.Cir. 1954).

63 State v. Jones, 50 N. H. 369 (1871). The basicdistinction between Durham and the New Hampshirerules lies in the fact that the framers of the latterbelieved that "mental disease" eliminates "intent,"whereas this belief is no longer valid today. Of course,absence of intent specifies the meaning of "mentaldisease" and thus affords a functional limitation of thetest as well as a rationale for its adoption.

4 See OVERHOLSER, TlE PSYCHIATRIST AND THELAw 22 (1953).55 BIGGs, THE GurLTY MIND 155 (1955).

HELEN SILVING

or of "mental disease."'56 It is concerned with the

moral or social convenience issue57 of deciding

what mental qualities or states of mind "should,"as a matter of sound policy, exculpate an offender.

The McNaghten rules were formulated on theBiblical assumption-perhaps unconscious at the

time of McNaghten's Case--that error of fact

or of law exculpates because it removes an essential

element of crime, disobedience to law.N The caseexpresses a definite policy, which, of course, istoo narrow to meet present-day requirements. Buta test now as then should provide an operationaltool for a chosen policy. Neither the Spanish northe Durham test satisfies this requirement.

To say that a "mentally ill" person is not re-sponsible, and then, only, pose the questionwherein mental disease consists and what qualitiesit comprises, begs the issue.H Such statement isnot a substantive policy disposition but a delega-tion of power.6 The basic objections to such dele-

516 Glover, Isolating a Group of Delinquent Disorders,1 BRITISH JOURNAL OF DELINQUENCY 109 (1950).

'7 Whether morality or social convenience is assumedas a policy standard depends on the basic approach toethics adopted by a given legal system.

H, See Ryu & Silving, Error Juris: A ComparativeStudy, 24 U. Cm, L. REv. 421, 430 (1957). That it wasthe policy of McNaghten to exempt from responsibilitythose engaged in legal and factual error and not thosesimply mentally ill becomes clear when the case isstudied in historical perspective. That mental diseaseitself exculpates is the result of a long evolution oflaw. Historically, the mentally ill were not exemptfrom punishment. Perhaps the main reason for thelaw's failure to recognize mental disease as a ground ofimmunity is the fact that the Bible, which has in-fluenced our criminal law throughout the formativeperiod of its history, far from looking upon suchdisease as an incapacity, indeed regards it as a sourceof visionary, prophetic inspiration. Balaam was a"closed-eyed man"; his eyes opened and he "perceivedthe sight of the Almighty" only after "he fell down."Numbers 24, 3, 4. He was obviously an epileptic.Compare also Hosea 9, 7. Freud's showing of thecorrespondence of opposites (Totem and Taboo, inTHE BASIC WRTINGs OF SIGmuND FREUD (Brilltransl. & ed. 1938) 807, at 858-9), affords a basis forassuming that it is this Biblical conception of insanityas a Divine gift which we find reflected in the medievalnotion of mental disease as possession by demons. Buterror of fact and of law was deemed in the Bible toexcuse non-observance of law, and it is this exemptionthat was preserved in the limited form of error basedon mental disease constituting a defense.59 "Disease" is not a medically or psychiatrically

well defined concept. As pointed out by East, Legaland Medical Advances in Criminology, in THM ROOTSOF CRIME, op. cit. supra, note 15, 1, at 5, "Many bookson general medicine, psychiatry and psychology omit'disease' from their indexes."

60 This is shown by In re Rosenfield, 157 Fed. Supp.18 (D.D.C. 1957), reversed and remanded sub nom.Rosenfield v. Overholser, 262 F.2d 34 (D.C. Cir.1958).

gation of power are political-possibly also con-stitutional--ones. It affords no assurance of equaltreatment and leaves abundant room for arbitrari-ness of those on whom determination of thepresence of mental disease in concrete cases de-pends. The substantive issue not being decided,neither can an adequate answer be expected re-garding the rationale of the exemption.

If it is deemed preferable not to leave the policydecision on the scope of exemption from responsi-bility ultimately to individual psychiatric experts,a legal definition of mental incapacity must beformulated in such a manner as to indicate thatscope. If the concept of "mental disease" is toplay a significant role in the exemption clause, it isimportant to note that there is disagreementamong the different psychiatric schools of thoughton the meaning and scope of this concept. 6' Thisimplies that the law must choose between thedivergent psychiatric approaches and follow adefinite psychiatric school of thought. Should thechosen doctrine be psychoanalytic, the definitionwould have to be shaped in the light of the funda-mental psychoanalytic tenet of the relativity ofmental health and mental disease. According topsychoanalytic doctrine, there are present in everyman's mind, the healthy as well as the ill, contra-dictory forces struggling for supremacy, conflictsbetween the ego, the id and the superego. Mentalhealth consists in a balance of these forces, a suc-cessful resolution of these conflicts, and mentaldisease consists in a disturbance of such balance,failure to resolve a conflict. The disease area isthus broad, and the borderline between illness andhealth is tenuous. 62

Adoption by law of the psychoanalytic definitionof mental disease as a test of exemption wouldimply concession of a rather comprehensive scope

61 There is no controversy today regarding desirabilityof exempting from responsibility all persons sufferingfrom severe mental diseases, the so-called "psychoses."The McNaghten rules are inadequate to supply abasis for affording an exemption even to all such persons.The differentiation between "significant knowledge"of right and wrong and "insignificant knowledge"is not a precise standard of exemption. There is noindication in the light of what science or discipline"significance" of knowledge is to be judged. In the caseof a psychotic offender, it would seem unnecessary toinquire into the question of whether the act was aproduct of the disease, even if such question werescientifically answerable.

62 On the nature of psychiatric diagnoses, see Ovxs-HOLSER, op. cit. supra, note 54, at 25; Brancale, Diag-nostic Techniques in Aid of Sentencing, 23 LAW ANDCONTEMP. PROB. 442, 445 (1958); MACDONALD, PSY-CHIATRY AND TIE CRIMNAL LAW 65 (1958).

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of exemption.6 But "mental disease," withoutfurther qualification, is not a necessary test ofexemption. Many psychoanalysts might, on psychi-atric grounds, not favor exemption from responsi-bility of all those whom they include in thecategory of the "mentally diseased." Assumingthat the psychoanalytic interpretation of mentallife is accepted by law as scientifically sound,psychoanalysts should be consulted on the problemof rational selection of the groups to be exempted.In fact, suggestions for narrowing the scope of thepsychoanalytic "mental disease" definition byadding a qualifying clause for use in a legal in-capacity test are already available. The Group forAdvancement of Psychiatry has suggested adop-tion of the civil committability test. 4 This sug-gestion, however, merely shifts the issue to anotherarea in which there is considerable uncertainty. Atest advanced by Bromberg and Cleckley offers adistinct improvement. It poses the question ofmental incapacity in the following terms: Was thefunction of the accused's "ego so impaired thathe could not, because of genuine disability, actwithin the limits of social demands and rules?"6 5

Yet, the phrases, "could not" and "genuine dis-ability," would seem to be rather vague. Theformer might also lend itself to being nullified bydeterministically oriented psychiatrists. Perhaps,since the very essence of the psychoanalytic viewof mental illness lies in its relativity, the test shouldalso be couched in comparative terms: Was theaccused's ego so impaired that he was very con-siderably less than the majority of the peoplewithin the community 6 capable of conforming tosocial demands and rules?" Both tests would prob-ably satisfy those concerned with the moral issueof responsibility. Presumably, anyone asked for a

6 The problem of qualification as an expert wouldpresent a major issue.64 Criminal Responsibility and Psychiatric Expert

Testimony, Report No. 26 (May 1954) of the Committeeon Psychiatry and Law of the Group for the Advance-ment of Psychiatry.

65 Bromberg and Cleckley, The Medico-Legal Di-lenmma, A Suggested Solution, 42 J. C=u. L., C. &P.S. 729, 744 (1952). The authors also put the ques-tion differently: whether the accused's "total personality(i.e., the ego), was impaired by mental disease to adegree rendering him unable to adjust to society'srules."

6 It would be necessary, of course, to include in thepenal code a definition of the term "community."

67 The danger of exempting too large a group ofpersons from responsibility might be to some extentobviated if the same test were used for releasing thoseacquitted on the ground of insanity from mentalhospitals.

common-sense reason for exempting a mentally illperson from responsibility would answer: "Becausea mentally ill person cannot help acting as he does,in a manner comparable to that in which you andI can help acting as we do." The moral ground ofthe exemption is not the disease but the ensuingincapacity, 6s and the disease merely functionsas a device of typifying and proving incapacity.

"Responsibility as Amenability to Treatment"

As pointed out above, our contemporary moralstandards suggest a policy of not holding a manpunitively responsible for an act he could not helpcommitting. But a number of psychoanalystsbelieve that the psychoanalytic discovery of theoperations of the Unconscious has proved theexistence of a complete "psychic determinism," inthe light of which all human thoughts, decisionsand actions are referable to causes, so that mannever possesses freedom of either choice or action.However, a man who cannot thus help committingcrime presents a danger to his fellow men. Sincesociety must be protected, it has been proposed byseveral psychoanalysts that all persons who commitcrime, whether mentally ill or healthy, whetherintentionally or unintentionally, consciously orunconsciously, be held "responsible," responsi-bility however meaning not punishment butamenability to treatment in accordance withpersonality differences to be established by psychi-atrists.69 This raises the second issue which, ofcourse, is by no means new in recent history,having been thoroughly debated when contentionsof a similar nature were advanced by the positivistschool of criminal law.

The argument thus advanced proceeds from amisconceived notion of causation and the policyadvocated is politically dangerous. To be sure,psychoanalysis has closed many gaps of our pre-vious knowledge of causation. It has suppliedcausal explanations for mental phenomena whichwere hitherto unexplainable, by tracing them backto unconscious sources. Although its causal ex-

68It may be interesting to note that Jim~nez deAsfia, under whose chairmanship the Spanish testwas formulated, does not himself approve of this test.He suggests the following formula: The followingpersons are not responsible (not imputable): "thealienated and the person in a state of temporarymental disturbance, when he cannot discern the illegalnature of his acts or inhibit his criminal impulses."See LA LEY Y EL DELIrO, op. cit. supra, note 48, at377.

69 See e.g., KARL MENmGER, TniE HuAr MiND448-49 (3d ed. 1945); ZMBOORG, op. cit., supra, note 9.

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planations have been chiefly concerned withphenomena hitherto ascribed to "accident"(parapraxes and dreams), it has also shown thatour conscious decisions and actions may be referredto unconscious motivations. From this the in-ference has been drawn that what we subjectivelyexperience as "choice" of courses of action is inreality predetermined by such motivations. Thus,though belief in free will may serve as a usefultoo70 for educational or therapeutic purposes, it isin fact, in the opinion of many psychoanalysts,but a figment of man's imagination.

This argument is not convincing. The historiesof theology and philosophy are replete with alle-gations of universal causation,7' and the problemof reconciling determinism of human conduct withfree will is at least as old as the doctrine of theorigins of sin and of Satan's godly descent. It wascertainly raised when God abstained from destroy-ing man on the ground that "the structure ofman's heart is evil since his childhood. 7 2 It isneither possible nor necessary in the presentcontext to trace the history of the notion of causa-tion as it developed from the time of this Biblicalpronouncement until our age of science andpsychology. With the emergence of new sciencesof man, the "sister sciences" of the law, the prob-lem of causation must be viewed in the first placemethodologically. It is not permissible to transfernotions of causation from mathematical sciencesto the so-called "sciences of man," for the methodsof verification in the latter are vastly differentfrom and less accurate than those available in theformer. 3 One might give further thought to the

70 Knight, Determinism, Freedom and Psychotherapy,9 PS-CnxiTR 251-262, at 251 (1946).

71 It may be pertinent to note that KELSEN, SocIETYAND) NATURE (1943), has shown the idea of "causation"to have originated in the legal notion of retributionand, throughout its history in science and philosophy,to have developed in close analogy to jurisprudentialchanges.

7 Genesis 8, 21. The passage in the King Jamesversion reads: "the imagination of man's heart is evilfrom his youth." But "yezer" (translated as "imagina-tion") cannot be adequately translated. It is used as"yezer hatov" and "yezer harah," a "good" and an"evil" "yezer." It is "creation," "creature," "product,""structure," even temptation or urge. "Neurim"(translated as "youth") is man's "childhood" as wellas his youth.

73It may be interesting to note that Max Planck,who showed an extremely keen interest in the problemof "free will," found evidence of its existence in therather pessimistic observation that, while it is possibleto predict objectively the conduct of other men, it isnot possible to predict one's own conduct without atthe same time influencing such conduct by self-observa-

precise import of the "proof" allegedly adducedby psychoanalysis of the inexistence of free will.In this discipline, proof consists mainly of psycho-logical experiences, e.g., the experience of a cure ora recollection, and such experiences are not quali-tatively different from the allegedly sham experi-ence of free choice. 4 Many thoughtful analyststreat "psychic determinism" as a hypothesis.7 5

That such hypothesis is a necessary operationaltool of psychological research and psychiatrictreatment cannot be doubted. But to draw fromit any inferences applicable also in law and ethicsis entirely unwarranted. In any event, assumingthe deterministic hypothesis to be applicable out-side of the spheres of psychology and psychiatry,it could afford no basis for any ethical proposition-even a utilitarian one--that might in turnserve as a hypothesis for society's "right" tointervene in man's life, either punitively or in theform of treatment. Determinism can at best sup-port the ethical nihilism expressed in the judicialstatement to a prisoner: "You could not helpkilling and I cannot help sentencing you to behanged."

76

However, exclusion of the issue of determinismdoes not dispose of the problem of the desirabilityof accepting the psychiatrists' proposal for re-placing retributive imprisonment by reformativetreatment and in the case of the unreformable bypreventive indefinite confinement. This proposalalso includes the suggestion that, after verdict,judges be replaced by psychiatrists. Attention is

tion. See PLANCK, VoU WESEN DER IVILLENSFREIMEIT

(1939). See also KAUSALGESETZ UND VILLENSFREnTEIT45-47 (1923).

74 I do not mean to imply that such experience isproof of the existence of free will in a Jamesian sense.

7 See, e.g., BRENNER, op. Cit. supra, note 43, 11-24.78 Ferri, a leading determinist, thus found himself

in a peculiar dilemma which he resolved by performinga "Kantian" switch from the realm of causation to thatof moral law. He said: "A man who violates the criminallaw may be examined as a delinquent (uono delin-quente) as regards his anti-social conduct (criminalpsychology), as an accused as regards his conduct inthe course of procedure (judicial psychology), and as aconvict as regards his conduct in prison (prison psy-chology). But as regards the legal crime, and as hisauthor, man must be studied as a subject of rights(individual or collective)." FERRi, PRiNciPn DI DnUITTOcRimnIALE 396-397 (1928). Life in society, he con-cluded, imposes an obligation of a minimum socialdiscipline. Supra, at 398. He failed to explain what an"obligation" means when a man cannot possiblyperform it. The idea of "social necessity" to whichhe eventually resorted is itself a legal concept-areflection of the "state of necessity" known in penallaw.

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invited to the fact that the proposal does notcompletely exclude the law and its processes, for itrequires the subjects of treatment or confinementto be selected on the basis of conviction of a crime,although as soon as such conviction is pronouncedit is to be completely disregarded, neither treat-ment nor period of detention being affected bythe gravity of the crime. That crime has at bestsymptomatic value, but other symptoms may beequally or even more pertinent to the ultimate dis-position. It would seem that the ritual of convic-tion must serve some purpose. This purpose ishardly preservation of the constitutional require-ment of jury trial alone. It is, rather, avoidanceof drawing the ultimate logical inference from therationale of the proposal, that is, discarding therequisite of crime and dividing the populationinto classes in accordance with psychiatric stand-ards of disposition. Those who admit such solutionto be unacceptable in a free society ought torealize that it is only one step removed fromindefinite confinement when the precipitating crimeis a minor one. The scope of this essay does notpermit elaborate discussion of all constitutionalgrounds of objection against such scheme.

DEFINING CEMINAL CONDUCT

Regrettably, no comprehensive reassessment ofthe present system of substantive criminal lawin the light of psychoanalytic insight has as yetbeen undertaken. Many psychoanalytic findingscan be fruitfully used in an attempt at a criticalevaluation of conventional crime types.

Psychoanalysis has substantiated the Biblicalfinding that no man is immune against evilthoughts. It has thus lent added support to theprinciple that intent alone is not punishable.Moreover, psychoanalysis has described indramatic fashion the struggle of contradictoryforces within man's mind for supremacy over hisactions. It has shown how forces of the Uncon-scious opposed to man's conscious intent to commitcrime may express themselves in the external

7 Notice that the recommendation of the AmericanPsychiatric Association, 1927, for "permanent legaldetention of the incurably inadequate, incompetent,and anti-social offenders irrespective of the particularoffense committed" (see Menninger, Medico-legal Pro-posals of the American Psychiatric Association, 19 J.CRr. L. & CRHIJNOLOGY 367, 376 (1928)) is notaccompanied by specification of the meaning of theseterms. Hakeem, op. cit. supra, note 11, at 650, notes:"Not one of the terms used in this grim scheme wasdefined."

world of action, frustrating its effectiveness. Thus,as the consequences of man's acts are seldomwholly unrelated to his mental processes, neitheris failure of intended consequences in most casesentirely "accidental." Frustration of an "intended"act appears to shed doubt on the integrity of theintentY5 This finding renders the doctrine ofattempt, which in its present form dearly aims atintent without even potential social harm, highlydubiousY9 Attempt should accordingly be punish-able only in those instances in which frustration ofthe result was clearly due to circumstances overwhich the actor had neither conscious nor uncon-scious control. 0 Unless intervention of a "trueaccident" is established, the actor should at bestincur a measure of education or a fine. By thesame token, the other so-called "inchoate crimes,"solicitation and conspiracy, which share withattempt the feature that the act falls short of that

8 On this see Ryu, Causation in Criminal Law,106 U. PA. L. Rnv. 773, 797-799 (1958).

On subjectivism in the law of attempt see Ryu,Problems of Criminal Attempts, 32 N. Y. U. L. REv.1170, 1187-1188 (1957).

Commenting upon Besson's Case, decided by theFrench Cour de Cassation (Ch. crim.), Aug. 8, 1947[1948] Dalloz Jurisprudence 293, which held an in-formation of homicide sufficient to support a convictionfor attempted homicide, Donnedieu de Vabres, in anote to the case in Dalloz Jurisprudence 293-296(1948), said (at 295): "The attempt of any crime isbut a particular aspect of that crime; indeed, it is thatcrime itself, which is commenced, planned, but whosecompletion is prevented by an accidental circumstancewhich hindered the will of the offender from pursuing[his intent] until the end of the consequences of theaction." This suggests that in attempt, it is mostly"the intent" that is obstructed. In some countriesattempt is punishable as severely as the completedcrime (e. g., Art. 3, French Penal Code), in others itmay be punished milder than the consummated crime(Section 44, German Penal Code). GLANvILLE WIf-LIAmS, CRnINAL LAW: THE GENERAL PART 109(1953), states that "the objects of incapacitation andreform would admit of no distinction [between attemptand the consummated crime] being made, for the dangeris the same where the criminal's failure to completeis due to chance." However, psychoanalysis shows thatin most cases that which is traditionally believed tobe "chance" is an unconsciously caused failure ofintent, so that the actor who failed to consummate thecrime is at least less dangerous than the successfulactor.

80To use a phrase of BRNNER, op. cit. supra,note 43, at 151, "Insofar as a foreseeable mishap[in the context of the text, a happy event-the avoid-ance of a criminal result] is caused by a 'human im-perfection' in the performance of some action or other,we assume that it was unconsciously intended by theperformer of that action." In the case of the frustratedcriminal intent, superego forces operate unconsciouslyto impede success.

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contemplated by the accused, appear ques-tionable.8

The ground for punishing conspiracy apartfrom and often in addition to the punishment ofthe act which is its object lies in the increasedsocial danger when several persons participate ina criminal scheme. This feature is present in allinstances of "participation in crime," instigation,aiding and abetting. Yet, in the latter instances,the punitive scheme of the criminal law takesaccount of the unity of purpose of the severalparticipants in a limitative rather than extensivemanner. It makes criminality-sometimes prosecu-tion, punishment and conviction-of theaccomplice dependent on criminality-prosecution,punishment and conviction-of the principal.This dependence of the accomplice's criminalityon that of the principal has been adequately de-scribed in French doctrine as "borrowed crimi-nality."8 2 The notion of "borrowed criminality"has been traced to ancient myths relating trans-mission of moral taint to inanimate objects aswell as to men, a taint which must be washed offby adjudging and destroying the affected thingor by punishing the contaminated person.u Themost moderate expression of the spirit of "bor-rowed criminality" in modern law is the Germanrule which, though no longer requiring the crimeof the accomplice to be of the same type as that ofthe principal,84 still predicates criminality of the81 As stated by Justice Jackson, concurring in

Krulewitch v. United States, 336 U. S. 440, 445, at450 (1949), "The doctrine [of conspiracy] does notcommend itself to jurists of civil-law countries, despiteuniversal recognition that an organized society musthave legal weapons for combatting organized crim-inality." The Italian Penal Code (1930), art. 115(1),specifically provides for the impunity of the merefact of agreement to commit crime. However, underart. 115(2), in the case of an agreement to commit afelony, the judge may apply a security measure. Suchmeasure is supervised liberty. Art. 229, It. Penal Code.On this see BEmOL, DnuTTo PENALE 441 (Thirdrev. ed. 1955).

82 Vouin ET LEAUTA, DROlT PENAL ET CRIINOLOGIE283-284 (1956).

83 Ibid.84 See Decision of the Bundesgerichtshof in Criminal

Matters (German Federal Republic) (V. Strafsenat),November 12, 1957, reported in 11 Neue JuristischeWochenschrift 69 (1958), holding that an accomplicecould be convicted of aiding and abetting fraud (sincethis was what he intended to do) even though theprincipals had committed blackmail. Contrast withthis approach the French law's literal interpretationof "borrowed criminality," which results in the follow-ing paradoxical situation: If A instigates B to killB's father, A is punishable for parricide, although thevictim is not his father; but if A instigates B to killA's father, who is not also the father of B, neither A

accomplice upon the presence of criminal intentin the principal's mind.8 5 "Borrowed criminality"today is based on a primitive "sociologic" notionof crime. Crime committed by several persons isapparently viewed as a direct product of thespecific relationship between them. The "intent"in such crimes seems to be conceived of as an"inter-personal," "supra-individual" psychologicalentity. Psychoanalysis rejects this, as well as anyother primarily sociologic, interpretation of crime.In its view, crime results from each actor's ownpsychological history and total personality de-velopment rather than from a direct impact ofspecific environmental social causation. Crimi-nality is thus always ultimately centered in theindividual. It follows from this psychoanalyticview of crime that each participant in crime shouldbe responsible for his own intent, regardless ofwhether anyone else possessed intent, and for theshare which he had in bringing about the criminalresult.

On the other hand, psychoanalysis suggests thepossibility of unconscious participation in crime.Of course, the law cannot intervene as regards theperson participating unconsciously; however, itmay and increasingly does take account of thephenomenon of unconscious participation withinthe scope of mitigating circumstances, particularlywhere the person who unconsciously instigates oraids the actor is the victim of the crime or a personon whom the actor is dependent.8 6

Psychoanalysis may also shed new light on thelegal doctrine of consent in those instances in which"consent" eliminates the criminality of an act. Aspecial situation may arise in the relationshipbetween a psychiatrist and his patient. An inter-vention into the bodily integrity of a patient is anassault unless he consents. Where he is mentallyill and thus legally incapable of giving consent, hisrelatives usually supply the necessary consent;for example, they consent to application of

nor B is punishable for parricide, but both are punish-able for simple murder. See VouIN ET LEAUTP, op.cit., supra, note 82, at 282.

85 See Decision of the Bundesgerichtshof in CriminalMatters (III. Strafsenat), July 6, 1956, reported in10 Neue Juristische Wochenschrift 29 (1957).

86 Thus, the Swiss Federal Penal Code (1937),Art. 64, enumerates among the mitigating circumstancesthe actor's having been induced to commit the crimeby a person "to whom he owes obedience or on whomhe is dependent" and his having been "seriouslytempted by the conduct of the injured person."

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PSYCHOANALOSIS AND CRIMINAL LAW

electro-shocks.P The knowledge we now possess ofthe hidden aggressions that exist precisely amongfamily members should disqualify relatives fromthus deciding upon the fate of a patient.8 In casesof mental patients, electro-shocks as well as anyother serious interventions should be permissibleonly upon the authority of a special court orderafter an adversary hearing in which the patientis represented by a public defender of the rightsand interests of the mentally ill.

As regards specific crimes, only particularly in-structive examples of the potential spheres ofpsychoanalytic impact may be noted in this essay.

Perhaps the most effective demonstration ofcontemporary man's unconscious memory of anoriginal father murder and of the presence of anOedipus complex in the mind of every man,whether judge or public, is the twentieth centuryscene of a parricide led to the place of executionbarefeet, clad only in a shirt, a black veil coveringhis face. On reading this description of the lawof parricide, one would assume that it refers to thelaw of the Trobriand Islanders. It may be instruc-tive to learn that it is the law of one of the mostcivilized, sophisticated and enlightened nations ofthe world, France." Psychoanalytic insight justifieselimination of parricide as a distinctive crime. -°

87Prominent psychiatrists have expressed the viewthat such treatment may permanently damage themental functions of the patient. See Guttmacher,supra, note 8, at 633. Concern with the possibility ofabuse of the device is expressed in Shock Therapy,Report No. 1 of the Group for Advancement of Psy-chiatry, September 15, 1947. See also Revised Electro-Shock Therapy Report, Report No. 15, August 1950,showing somewhat less concern; but see par. 9, letter a,at p. 2: "The mode of action of electro-shock therapy... is unknown."

81An interesting malpractice case in which a wife'sconsent to application of shock-therapy to the hus-band was collaterally in issue is Lester v. Aetna Cas. &Sur. Co., 240 F.2d 676 (5th Cir. 1957).

9 Art. 13, French Penal Code.90 In France, parricide is punished capitally (Art.

302, Penal Code), whereas simple murder is punishedby life imprisonment with forced labor. The specialcrime of parricide was abolished in Germany in 1941.Law of Sept. 4, 1941 (R.G.BI. I S. 549).

Psychoanalysis, which in its formative yearshad been branded as "all quackery and pornog-raphy"' because it had dared to discuss sexscientifically and dispassionately, has been sinceremarkably successful in bringing enlightenmenton the subject to the general public. But it hasreached only a very limited audience when it hasattempted to make the sex offender better under-stood. Sex offenders are special targets of prejudice,because their crimes are particularly apt to callforth in the minds of judges and the public theirown infantile experiences, forbidden wishes andguilt feelings. Even convicted burglars tend todespise their fellow prisoners of the homosexualtype.9- Psychoanalysis has shown that many sexoffenders are not simply wicked but are rathervictims of neurotic impulses which they are unableto control.

The impact of the reform movement originatedin this area is as yet uncertain. There is, on theone hand, a tendency to eliminate from the list ofcrimes deviations which are expressed in conductnot socially harmful, to grade other conduct inaccordance with the degree of its actual harmful-ness, and to treat rather than punish the offender,and, on the other hand, a highly questionabletrend toward protection of society often againstminor and uncertain danger at the expense of in-dividual liberty and due process.9'

As a lawyer inspired by the stimulus afforded tolegal thinking by the psychoanalytic movement, Ishould like to conclude on a note of hope that thelaw may, within the limits of due process and theneeds of protecting men's freedom, equality anddignity, utilize to the fullest extent the teachingsof psychoanalytic psychology.

91 GEORGE BERNARD SHAW, THE CRumE OF Im-PRISONMtENT 47 (Philosophical Library New York1946) thus expressed the public view of psychoanalysis.

92H. MANH~fra, CIIINmL JusTIcE AND SOCIALRECONSTRUCTION 65 (1946).93 On the problem of sex offenses see particularly

B. KrARuN, op. cit. supra, note 13.

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