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1933

Some Basic Problems in Criminology

Jerome Hall
Indiana University School of Law

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 Some Basic Problems in Criminology
By JEROME HALL

THE enormous literature on method- our frames of reference have been con-
ology which has appeared in the structed for us.
last decade has, despite criticism and All of the above applies to crimi-
admonitions from certain quarters,' re- nology more forcibly than to most
sulted in a much clearer appreciation of social disciplines. For purposes of sim-
the limitations of contemporary social plifying this discussion and keeping it
science. Thus, for example, there is within the set boundary, we shall pre-
now considerable understanding of the sent very briefly three principal ap-
huge proportions and significance of proaches which for convenience may be
linguistic difficulties. If, as Sapir and termed the "rigorous scientific," the
others tell us, language is the vehicle of "scientific method," and the "unique
thought, then the difficulties are by no data" interpretations, respectively.
means purely philological; much more, The knowledge found in criminology
they require an infinitely more thor- may be subsumed under different
oughgoing analysis than has heretofore categories described in the various in-
been attempted. This means that for terpretations set forth. From such a
an indefinite period to come, the lan- demonstration of the relationship of
guage problem and all that it involves criminology to these three interpreta-
will be a chief concern of social scien- tions of social science, and of the rela-
tists. tionship of these interpretations to each
There are other valuable lessons to other, it is hoped that something will be
be learned from this literature, for added to our understanding of some of
these discussions have been pushed the major problems presented by the
sufficiently far to permit a more so- contemporary literature of criminology.
phisticated reading and evaluation of
THE RIGOROUS SCIENTIFIC
sociological writing than was previously
POSITION
possible. We are able to see many
interrelationships among the problems Very happily for our present under-
investigated. And we are beginning to taking, we may set forth the "rigorous
understand how much of social "sci- scientific" position by reference to the
ence" is really social policy more or recent publication of the most thor-
less disguised; in short, how much of oughgoing critique on criminology and
sociological writing consists of expres- criminal law and its administration
sions of approbation or displeasure. that has yet appeared.2 This analysis
And in the rare instances where a high of the field is the product both of a logi-
degree of objectivity exists, we are in a cian and philosopher and of a law
better position to understand and teacher who has had many years of
evaluate the particular job by our practice at the bar. After a compre-
greater appreciation of the various hensive survey of the field, they arrive
fundamental approaches to and inter- at the following conclusions:
pretations of social science. In short, 2Michael, J., and M. J. Adler, Crime, Law and
1
Ellwood, C. A., "Scientific Method in Social Science, Harcourt, Brace and Company,
Sociology" (1931), 10 Social Forces 15-21. 1933.
119

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120 THE ANNALS OF THE AMERICAN ACADEMY

I. There is no scientific knowledge in the these fields, and this, in turn, de-
field of criminology. pends upon the correction of the
A. We have no knowledge of the causes misconception or inadequate con-
of criminal behavior or of the ef- ception of empirical science and
fects of different modes and varie- scientific method which is now
ties of treatment upon actual or prevalent in these fields and which
potential offenders, or of the we have characterized as raw
efficacy of programs and measures empiricism.3
of prevention.
1. In the absence of such knowledge Without attempting a systematic
we are and will continue to summarization of this book, which is
be impotent to control crim- impossible within the limits of this
inal behavior. paper, we shall very briefly present the
B. The knowledge which has resulted general thesis maintained, which led to
from criminological research is the above conclusions, namely:
knowledge descriptive of the Problems are either theoretical or
characteristics of criminals and of
their environments.
practical. Practical problems concern
C. This descriptive knowledge has lit- affairs, procedure, or action; they in-
tle utility in the solution of the
volve the fixing of an end which it is
desired to achieve, and the determina-
practical problem of controlling
criminal behavior, either through tion of meansto accomplishit. Onthe
programs of prevention or through other hand, theoretical problems are
the official treatment of offenders. questions as to knowledge-never as to
1. It can be employed only in decisions. When we answer theoreti-
trial and error attempts to cal problems our conclusions are either
control criminal behavior, true, false, or probable; whereas the
and therefore has little prac- answers to a practical problem are wise
tical value.
2. Such attempts cannot now be 3 Ibid., pp. 390-391; and in connection with the
made the basis of experi- last statement above, note: ". . . the scientific
mental programs and, there- method . . . is hardly more than the native
method of solving problems, a little clarified from
fore, have little theoretical prejudice and a little cultivated by training. A
significance. detective with his murder mystery, a chemist
II. Empirical scientific research in crimi- seeking the structure of a new compound, use
nology cannot be undertaken at the little of the formal and logical modes of reasoning.
present time. Through a series of intuitions, surmises, fancies
A. The subject matter of criminology is they stumble upon the right explanation, and
criminal behavior, andcriminology have a knack of seizing it when it once comes
within reach. I have no patience with attempts
is, therefore, a dependent science.
to identify science with measurement which is
B. Criminology depends in large part
but one of its tools, or with any definition of the
upon the subject matter of psy- scientist which would exclude a Darwin, a Pas-
chology and sociology, and these teur or a Kekule." Gilbert Lewis, The Anatomy
subject matters have not yet been of Science, p. 6.
developed as empirical sciences. Cf. also, "The principle of the scientific
C. Since no theory or analysis has been method, in fact, is only a refinement, by analysis
developed in the fields of psychol- and controls, of the universal process of learning
ogy and sociology, scientific re- by experience. This is usually called common
search is not yet possible in these sense. The scientific addition to common sense
is merely a more penetrating analysis of the com-
fields.
plex factors involved, even in seemingly simple
D. The possibility of scientific research
events, and the necessity of numerous repetitions
in psychology and sociology de- and controls before conclusions are established."
pends upon radical changes in the A. J. Carlson, "Science and the Supernatural"
methodology of investigation in (1931), 73 Science, 218.

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 SOME BASIC PROBLEMS IN CRIMINOLOGY 121

or unwise, intelligent or unintelligent, as distinct from an empirical science.

just or unjust. There are two ways of Say Professors Michael and Adler:
determining whether means are adapted "The body of knowledge called crimi-
to ends: common sense and the method nology does not contain a single scien-
of empirical science. Common sense is tific proposition."'7 They inform us as
frequently adequate and in the degree to what must be done: First, the re-
that the practical problem is simple; search must be directed by a problem-
with increased complexity, common atic proposition;8second, the data must
sense becomes more and more inade- be both reliable and accurate; third, the
quate. data of observation must be developed
After stating the problems which by processes of inference.
arise from crime, the criminal law and As will be noted by reference to the
its administration, the authors of the above summarization, the approach
survey proceed to their most basic in- taken consists of setting up a very
quiry, namely, "the conditions of a rigorous definition of "science" and
science of criminology."4 "Criminol- classifying the knowledge in the field of
ogy consists of information about criminology with reference to that
the activities and nature of criminals, definition. That the adherents of this
their environments, and the ways in position are perfectly aware of their
which they are officially and unoffi- procedure is definitely shown by their
cially treated by social agents and statement that "we are using empirical
agencies."5 The central problem in science in a sense which includes phy-
criminology is that of the causes of sics and excludes anatomy."' If this
crime; accordingly the significance of terminology is borne in mind, their
criminological knowledge depends upon classification of criminology as "com-
the ability of this knowledge to solve mon sense" knowledge becomes per-
the etiological problem. A cause is fectly understandable. They intend
discovered by finding "the precise na- no depreciation of the knowledge in
ture of the relation of dependence which criminology in itself, but only in com-
obtains between a given item on the parison with science as defined. In
one hand and one or more items on the fact, the authors of the work referredto
other hand."' Interdependent items are really upon common ground with
are called yariables, and the inquiry in- many students of criminology in recog-
volves the nature of their covariation. nizing the value for certain purposes
and within certain limits, of the best re-
SCIENCE DEFINED search in criminology.10
The authors then define science: it
consists of propositions which must I7bid., p. 58.
8 Cf. Professor E. W. Patterson: one
have (1) generality, (2) determinate "...
must have some vaguely felt aim or need at the
validity, (3) a formal character as a re- outset, but that one need not have a sharply
lation of variables, and (4) compend- formulated proposition to test. One must be
ency. If the validity of all the proposi- willing to be led by the facts, one must realize
that knowledge is a process of interaction be-
tions rests upon the validity of a small tween sense-data and the assumptions of prior
number of propositions, that is, if we experience. Incipient generalizations become
have a systematically ordered set of irrelevant because they are supplanted by dis-
propositions, we have a rational science criminations suggested by the data turned up in
investigation." "Can Law Be Scientific?"
4 Michael and Adler, op. cit., Ch. V. (1930) 25 Ill. L. Rev. 145.
5 Ibid., p. 46. 9 Michael and Adler, op. cit., Preface, p. xxi.
1 Ibid., pp. 49-50. 10 Ibid.,
pp. 331-2.

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192 THE ANNALS OF THE AMERICANACADEMY

is not scientific. Thus, Professors

SCIENTIFICMETHOD Michael and Adler state that scientific
The second position, which was in- methods are not employed at present in
spired largely by Pearson and in which social research."3 To understand their
major emphasis is placed upon method, position, reference must be had to their
is that taken by the younger group of definition of the two terms "science"
sociologists. Many of these students (which has been stated above) and
of the social disciplines, in sharp con- " method."'14
trast with the older scholars, were re- Exactly the same observations with
cruited from physics, biology, and other regard to the necessity for definition
sciences (note that we use the word less must be made with reference to the
rigorously than above). In any event, content of the social sciences. Al-
they studied the natural sciences and though the younger sociologists freely
attempted to take over as much of the admit that they have not discovered
methodology as could be employed on anywhere near the number of scientific
the particular social data studied. generalizations which are found in the
The demarcation of narrow areas for exact sciences, they nevertheless assert
intensive empirical research has thus that scientific laws are simply descrip-
distinguished contemporary social sci- tions of general types of behavior under
ence from the comprehensive systems certain specified conditions, and that
associated with the work of scholars the sociologists have already discovered
like Spencer and Ward. a number of such laws.15
As has been stated, the major em-
13They select psychometrics and mathematical
phasis of this group has been upon economics as the only scientific divisions of the
method. Their examination of the social
disciplines. Both of these fields, it is sub-
natural sciences leads them to conclude mitted, in so far as they are exact, are branches
that although techniques vary and are of mathematics, numbers being more or less
admittedly more highly developed in arbitrarily assigned to data, and in this aspect
the exact sciences, nevertheless the are not social sciences at all. In the latter field,
mathematical formulee could be readily fitted to
method employed (meaning thereby at the concept of the "economic man" of classical
its minimum the "logic of measure- economists, which involves quite a different
ment "11) is common. Thus, Dr. matter from dealing with human beings. Cur-
rent institutional economics as a reaction from
George Lundberg writes: classical economics is significant from this point
But when a generalcriterionor definition of view.
of scienceis attemptedit is foundthat such 14That they apparently insist upon techniques
definitiontends to be in terms of method as an essential part of "scientific method" may
ratherthan of subject-matter. All that the be gathered from the following: "The generaliza-
term scienceas appliedto a particularfield tions of empirical science, like those of common
rest upon experience and are derived from
comes to mean is a field which has been sense,
it by prudence and intelligence; they differ in
studiedaccordingto certainprinciples,i. e., that in their derivation
intelligence is directed
according to scientific method.12 methodically and is aided by special techniques,
Until it is carefully defined, the and in that taken together they constitute an
word "method," like the word "sci- analysis of some limited portion of experience
which is the subject matter of a particular sci-
ence," means all things to all men; and ence." Op.cit., Preface,p. xxii.
until attention is centered upon pre- Cf. G. Lewis and A. J. Carlson quoted in note
cisely the same phenomena, it is futile 3, supra.
to assert that a particular method is or 15 Thus Dr. Lundberg writes: "What is a scien-
tific law, but a brief description of how phenom-
11G. A. Lundberg, in an unpublished paper. ena behave under given conditions? This is not
12Idem, Social Research, p. 92.
only possible but has been practiced in a more or

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 SOME BASIC PROBLEMSIN CRIMINOLOGY 123
Clearly, if the term "common sense"
Classification of knowledge-- is used as in ordinary speech, objections
If attention is now directed to some can be raised to the subsumption of
of the best research in criminology, as, the knowledge acquired through the
for example, parole prediction and eco- methods employed to construct the
logical studies of juvenile delinquency, prediction tables, under this category.
several results follow. If our purpose However, it is obvious that the adher-
is to classify this type of knowledge, the ents of the position first described do
particular criteria selected will in part not use the term in its ordinary conno-
determine the distribution made. If tation. They mean merely that it is
the criteria be narrowed to methods, not "scientific" (as rigorously defined
and methods be limited to the "logic of by them). And they add, "we have
measurement," then these studies are not meant to say that such knowledge
"scientific." (We are referring here is the common possession of all men or
only to the classifications employed in that those men who possess it, have it
the two positions discussed above.) If to the same degree." 16
the criteria are propositions character-
ized by a relation of variables, com- A suggestedsolution-
pendency, and so forth, and if methods The opposition between the two
include the techniques of physics, then positions thus far presented is in large
the studies referred to cannot be "sci- part resolved by taxonomic analysis.
entific" but must be "common sense") A possible solution which suggests it-
or some other category which is more self is the adoption of a third category
apt. intermediate between "science," rigor-
ously defined, and "common sense" as
less systematic way from the very beginning of ordinarily understood. The use of the
society. All that social science aims to do is to latter term cannot fail to connote
change this practice from a rule-of-thumb pro- knowledge which is common, despite
cedure to an objective and more exact practice."
the warning given in this connection.
"The uniformities in physical data which form There accordingly is need, for certain
the basis of all physical science are also observ- important purposes, to have a third
able in social data. As we have noted, scientific
laws specify certain simple and frequently arti-
category which will include such re-
ficial conditions under which phenomena behave
searches as those mentioned; which
in a certain way. Under these conditions, the will include psychiatry and medicine
behavior can be predicted with a high degree of and other knowledge arrived at by the
accuracy. Likewise we can predict, with a high use of orderly, systematic procedures,
degree of accuracy, how many people in a given and the application of which requires a
city will be born, will die, commit suicide, or get
married during the coming year, provided, the trained, experienced judgment.
significant conditions obtaining during the past So far as we know, it is a debatable
years on which our observations are based re- question whether the use of objective
main the same." Social Research, pp. 12, 15.
And Dr. Read Bain, another adherent of the
techniques calls for a different kind of
position presented, writes: "But sociology and thinking from common sense me-
other social sciences are rapidly building up a thods, or indeed, whether these differ
vast body of sound scientific knowledge which by from the mental processes employed in
reason of its quantic nature and criticism of rigorous scientific analysis or observa-
common sense, or both, sounds as strange to the tion. The question of the validity of
man on the street as endocrinology, radioactivity,
or theories of immune sera." "The Concept of categories invented to represent al-
Complexity in Sociology: II" (1930), 3 Social leged differences in method cannot be
Forces 373. 16 Michael and Adler, op. cit., p. 331.

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124 THE ANNALS OF THE AMERICAN ACADEMY

settled absolutely; and the only clue The desiderata of definiteness of deno-
that can be suggested is that all classi- tation, comprehensiveness, and ab-
fications are constructed to meet par- sence of affective associations suggest
ticular needs (and for some, we want themselves. Many of the principles
to emphasize the results of our thinking applied by the philologists who are
rather than our process). It depends, concerning themselves with the con-
in short, very largely upon the purpose struction of an international language
in hand. have some application. And the fact
Under the circumstances and within that a particular usage is customary
the above limitations, all that can be may have greater disadvantages than
stated is that it is possible to detect benefits.
differentiae which are significant for a Finally, the experience of the older
great many purposes. And it seems sciences may be utilized. The termi-
to the writer (which may be purely a nology adopted by Professors Michael
personal predilection) that there is a and Adler has this distinct advantage:
broad basis for differentiating social science, rigorously defined, becomes
science both from common sense and relatively definite. Other types of
from empirical science as defined; from knowledge may be very valuable, but
the latter because it is not exact, and will not be subsumed under the rubric
from the former because it is not com- "science." In addition to the defi-
mon but confined to persons who have niteness thus attained in one direction
had specialized experience in a particu- at least, there is also the advantage of
lar field which qualifies them for an having direct attention called to the
efficient behavior which cannot be relatively smaller degree of validity of
expected of laymen however intelligent other types of knowledge, with the very
they may be. salutary effect of fostering a skeptical,
To this distinctive content of the critical attitude and of dispelling the
social disciplines must be added an- smugness that frequently results when
other difference (from common sense) terms and definitions are expanded to
which they possess, namely, an orderly allow everyone from the professional
method which operates through the prize fighter to the experimental physi-
agency of various more or less elaborate cist to rest under the coveted aegis of
techniques, a method which is care- Science.
fully designed to eliminate bias, to
make possible the detection of all "UNIQUE DATA" INTERPRETATION
relevant data, to make use of all veri- Even if it is impossible to secure
fiable data, and to record the results so considerable agreement on present
that they may be checked by other
or a difference. Thus, we employ the phrase
investigators. Of course there remains, 'empirical science' in a restricted meaning which
among others, the difficulty that una- differentiates physics from criminology; we might
nimity is not quite so readily deter- have used it in a less restricted meaning in order
mined as in the physical sciences; nor to indicate the similarity of physics and crimi-
is it so widespread, which is to be nology as bodies of knowledge somehow based
upon experience. The analysis would not be
expected. changed by this arbitrary change in usage, be-
We know no way of determining the cause physics and criminology are clearly differ-
question regarding an adequate termi- entiable as bodies of knowledge, and hence some
other word could be used arbitrarily to express
nology except by reference to utility.17 this differentiation. Verbal usage may be
1' Cf. "It is entirely arbitrary whether a arbitrary, but analysis is not." Michael and
given word shall be used to indicate a similarity Adler, op. cit., Preface, p. xix.

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 SOME BASIC PROBLEMS IN CRIMINOLOGY 125

controversial questions among ad- The question of causation 20is merely

herents of the first two positions another phase of the question of knowl-
discussed, it is certain that the differ- edge. Control and prediction depend
ences between them are relatively in part upon our knowledge of causes.
minor when contrasted with those of Can we control criminal behavior by
the third position which we present. common sense knowledge? This ques-
We refer to those scholars who hold tion raises not only all the difficulties
that social data are unique 18 and that that we have previously considered,
the methods of natural science and
certainly rigorous scientific techniques thetical to that of 'control' by the behaving ma-
are very inadequate in the study and terial itself. There is, no doubt, considerable
uniformity of sequence in social phenomena, but
understanding of social phenomena. it runs in terms of meanings and values rather
Thus, Professor Maclver, one of the than physically described events. It is known
leading exponents of this view, writes: by communication, Einfiihlung, 'sympathetic
introspection' (Cooley). This notoriously fails
The trouble is that the social sciences to yield accurate results uniform for different ob-
suffer from certain embarrassments from servers." Frank H. Knight, "The Newer
which the "natural sciences" are more or Economics and The Control of Economic Ac-
less free. They have to deal with phe- tivity," (1932) 40. Jour. of Pol. Economy, 440.
nomena which involve a kind of causation "If we keep in mind both the historic and the
unknown in the purely physical world, teleologic aspect of social life, we see an inter-
since they are "motivated," in fact brought action and a mutual dependence between what is
into being, by that elusive and complex, and what should be, between the actual historic
cause and the ideal of what is desired. The sub-
but undeniable, reality, the mentality of
ject matter of social science thus differs from the
man. Not a single object which the social
subject matter of natural science not only in in-
sciences study would exist at all were it not troducing the prospective or teleological point
for the creative imagination of social beings. of view, which describes movements in terms of
Consequently the social sciences have to their goals, but in the more specific element
deal with variable and indeterminate con- of tradition which sometimes takes the form of
cepts such as capital and labor, family and conscious teaching and learning. We may say
nation, state and sovereignty, crime and that the distinctive subject matter of the social
sciences is cultural in the sense defined by Tylor,
unemployment, folkways, institutions, so- to wit 'the complex whole which includes knowl-
cial attitudes, and other intangibles. The
social scientist has no "natural" classifica- edge, belief, art, morals, law, custom, and any
other capabilities and habits acquired by man as
tions to guide him such as those with which a member of society'."
nature is expected to accommodate the "For an adequate account of the distinctive
geologist or the entomologist. Under these subject matter of the social sciences, we must
circumstances every authority is free to de- take note of the element of tradition, of the ways
fine his concepts in his own way and treat whereby social conformity is brought about."
them in his own way.19 M. R. Cohen, "The Social Sciences and The
Natural Sciences," in Ogburn and Goldenwieser,
is Note the positionof ProfessorsMichaeland Social Sciences and Their Interrelations, pp. 450,
Adler that it is possible to have an empirical sci- 468. Professor Cohen's position is elaborated in
ence of criminology; and that social phenomena his recently published Reason and Nature,
are no more complex, intangible, elusive, etc., 20Cf. Bertrand Russell's chapter "On the No-
than physical phenomena. Op. cit., pp. 72-74. tion of Cause" in Mysticism and Logic: "All
19MacIver, R. M., "Is Sociology a Natural philosophers, of every school, imagine that
Science?" (1931) 25 Publ. of the Sociol. Soc. of causation is one of the fundamental axioms or
Am. 26-27. postulates of science, yet oddly enough, in ad-
"If there is to be any 'objective' social science vanced sciences such as gravitational astronomy,
it will have to run in terms of the kind of ob- the word 'cause' never occurs. . . . To me it
jectivity which social ends and procedures of ac- seems that philosophy ought not to assume such
tion actually possess, which is strikingly different legislative functions, and that the reason why
from that belonging to physical phenomena. physics has ceased to look for causes is that, in
The notion of 'uniformity of sequence' is anti- fact, there are no such things." P. 180.

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 126 THE ANNALS OF THE AMERICAN ACADEMY

but also the new one of "control." any sense, we may merely note diverse
Certainly "control" in human society answers which cannot now be under-
is not significantly limited to the direct, stood. The authors of the survey
immediate behavior to which we refer referred to insist that etiological knowl-
when we speak of driving an automo- edge is scientific (as rigorously defined)
bile or throwing a ball. More than and that only such knowledge can as-
that, while men control physical ob- sist in controlling criminal behavior.
jects in this simple, direct manner, it is At the opposite extreme, Dr. Frank
clear that they do not control natural Knight, who takes an extremely criti-
phenomena in the same sense at all. cal, skeptical position,22states that:
They do make certain adjustments to Common sense does predict and control,
them, and they can predict some of and can be trained to predict and control
them. We can fairly well predict the better; but that does not prove that science
number of deaths which will occur in can predict and control better than common
the United States during the next ten sense. And it seems very doubtful whether
years, but we can do little about con- in the majority of social problems the ap-
trolling their occurrence. If we know plication of logical methods and canons will
that unemployment, poverty, and sub- give as good results as the informal, intui-
tive process of judgment which, when re-
normality increase criminal behavior, fined and developed, becomes art. Art is
we cannot as a result of that knowledge not science, and only within narrow limits
lessen that behavior. can it be reduced to science (in which case
Commonsense and control- of course it ceases to be art). It seems to
us that science is a special technique de-
Control has been defined loosely, veloped for and applicable to the control of
where it has not been entirely assumed physical nature, but that the ideal so con-
without any attempt at definition, and stantly preached and reiterated, of carrying
it is impossible within the limits of this its procedure over into the field of the social
paper to discuss the question in any phenomena rests on a serious misapprehen-
detail.21 If we ask does common sense Sion.23

knowledge permit us to "control" in As is to be expected, the adherents

21Cf. "If men are free they are not subject to of the "unique data" interpretation
'control' other than their own, and, if there is no hold that social causation is different
freedom, we are all alike under the absolute 'con-
trol' of physical causality, and all talk of social from physical causation.24 Without
control is nonsense. Literal 'control' means 22See Dr. Knight's discussion,
op. cit. supra,
that some are 'free' to 'control' others, meaning, pp. 458-468.
again, that they have power to do so. We con- 28 Knight, Frank H., "The Limitations of Sci-
front the old question, or questions, of the r6le of entific Method in Economics," in The Trend of
the individual in history; how much and how Economics, edited by R. G. Tugwell (1924), p.
fast can one man change the course of events, and 254.
what is the likelihood that any change he does 24 "But these quantitative indices are merely
produce is for the better? Even afterward, we evidences of an interaction which they do not ex-
cannot tell with any precision. In the mutual plain; they are not the dynamic factors of which
struggle of millions of individuals the effect pro- we are in quest. If we appreciate at all the na-
duced by any one on all the rest must very ex- ture of social causation we shall never expect to
ceptionally be appreciable, and its character de- find that this factor A, presumptively measured
pends on the good will and good foresight of the by this quantitative indication a, contributes 20
far future of those who do achieve some power. per cent, and so forth. Much ingenuity, and
Historical students agree that most 'leaders' are still more energy have been lavished on the at-
largely followers, or accidental symbols of move- tempt to reach results which the very nature of
ments." Frank H. Knight, "The Newer Eco- the subject matter precludes. Social phenomena
nomics and The Control of Economic Activity," are not, like certain physical phenomena, isolable
(1932) 40 Jour. of Pol. Economy 458. components of a situation. Social phenomena

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 SOME BASIC PROBLEMS IN CRIMINOLOGY 127

dwelling upon this angle of the prob- behaviorism frequently direct their at-
lem, it is obvious that we have also tack with reference to a very narrow
a linguistic problem here which has definition of the term (made possible
only recently been recognized with by the existence of many varieties), and
reference to the idea of control. Sig- assume also the continued existence of a
nificantly enough, the recognition of mechanics which has all but disap-
the linguistic problem at this point has peared from contemporary physics.
developed with and from analysis of Many of the ablest advocates of be-
this concept. havioristic approaches and interpreta-
tions deny that their position calls
BEHAVIORISM for the reduction of social phenomena
Underlying the third position de- to the simplest physical phenomena.
scribed above is the suggestion that the Along with these various developments
social disciplines are more closely which have accompanied analysis and
related to art than they are to science.25 research, we find, accordingly, concomi-
Without attempting to decide this tant changes in definition and termi-
issue, we may note the significance of nology.
this view with reference to behavior-
ism. The literature of psychology RELIANCE UPON INTUITIVE PROCESSES
during the past decade has been de- Whether it is merely a temporary
voted so abundantly to a considera- difficulty arising from a limited use of
tion of behavioristic approaches that objective methods, or a permanent
lengthy summarization is unnecessary. limitation which results from essential
Furthermore, in view of the recent differences of social data, it seems clear
revolutionary changes regarding many that in the solution of problems which
fundamental theories in physics on the are dealt with in the administration of
one hand, and of the newer meanings the law, we are compelled to utilize in-
that have been assigned to "behavior- tuitive processes. Intention, planning,
ism" on the other (by L. L. Bernard, and motivation (though they may be
A. P. Weiss, R. Bain, et al), it is im- merely general terms which represent
possible to arrive at any but the most a large number of acts) are necessary
tentative conclusions. Opponents of concepts. Nor does it seem possible
are aspects of a total non-mechanical consciously
at present to make a sufficiently de-
upheld system of relationships. . ... Behind
tailed analysis of behavior to enable us
every social relationship lie social attitudes and to dispense with these concepts. With-
interests, which are not separable forces but out asserting that a highly developed
type-phases of dynamic personality." R. M. behaviorism may not offer a more
MacIver, Society, Its Structure and Changes
(1951) p. 520.
satisfactory explanation of the phe-
25 Cf. Gilbert Lewis, TheAnatomyof Science: nomena associated with motivation,
"The method of the chemist . . . [and] his data sentiments, emotions, and so forth
are far less exact [than the physicist's] .... than is now derived by the use of the
Some are rough measurements, but the greater
intuitive processes alone, it is necessary,
part are not even metrical in character. They
are based upon the observations of thousands of at least in the administration of the
different substances and from these observations law, to rely chiefly upon insight and
come rough generalizations like the law of Men- imagination. Accordingly, if atten-
del6eff." P. 169. tion be centered upon present tech-
"So, as the organic chemist acquires profi-
ciency in this art, for indeed it is almost an art, he niques
and upon explanations of
acquires an intimate acquaintance with his behavior hitherto adduced by objective
material." P. 174. methods, it seems clear that it is neces-

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 198 THE ANNALS OF THE AMERICAN ACADEMY

sary not only to employ physical and merely suggests that for an indefinite
biological explanations to the fullest future, we must not expect compendent
extent, but also to supplement these propositions whose validity may be
by explanations on a purely social determined in part by reference to
level. scale, galvanometer, or test tube; but
Nor do we need to adopt the view rather, we must continue indefinitely
that social data are essentially different to use our most subtle imaginations not
from any other data. The question, only in detecting small relationships in
in any event, is How can social the vast mass of data that we collect,
phenomena be best understood? If we but, moreover, in interpreting, evaluat-
confine ourselves to present problems ing, and using these small truths to-
and to available explanations, certain gether with the whole body of our
conclusions are unavoidable. Thus, experience in understanding the social
in criminology, the method of Dosto- life about us, including criminal be-
ievsky, for example, is more valuable havior. And of equal importance is
in understanding some types of crimi- the recognition of the fact that the
nal behavior than any scientific tech- methods employed in the social sciences
niques that have been developed thus provide, at the minimum, a large body
far. Yet it is very frequently assumed of relatively detailed, reliable informa-
(by simply ignoring it) that we must tion upon which insight, imagination,
take imagination or insight as given, and judgment can operate more effec-
that we need not study, train, or tively.
cultivate it, and moreover, by placing
entire emphasis upon objective meth- DEGREE OF PRECISION REQUIRED
ods, that these latter are paramount. Finally, it may be said that while
The best work in the social sciences researches in the social sciences, includ-
is a combination of orderly method and ing criminology, do not result in prop-
trained imagination; and while we do ositions which are as exact as those
not find this anywhere deliberately found in physics, it is necessary to
denied, and indeed the reverse is true, note that such precision is not required
nevertheless we believe it may fairly in the administration of the criminal
be stated that a serious limitation of law. Precision itself is purely relative,
contemporary criminology is the failure and the need for any particular degree
to train and utilize the processes of of precision is determined by the
insight and imagination.26 purpose in hand. This certainly is
This observation is entirely con- true in law. Thus the adoption of a
sistent with further empirical investiga- wise policy by a legislature would not
tion in the social sciences, with necessarily be in the least affected by
experimentation of every sort. It the most precise data imaginable.
26Case studies are only a small beginning; the Professor Herman Oliphant illus-
most detailed life histories, which have for the trates the point very neatly as follows:
most part been best developed hitherto by the
A recent study of the labor injunction
psychoanalysts, should be compiled without
necessarily adopting the psychoanalytic ideology. in New York shows that in about 60
Interpretations made by intuitive processes can per cent of the cases, the temporary
be supplemented by further observation. And a injunction was the only relief sought
communication (objectification) of their intuitive and granted. If the legislature should
processes by judges, juries, etc. would be valu-
able. Novelists and biographers who make no
consider regulation of this type of
attempt to ape psychologists provide valuable remedy, it would not make the least
material. difference whether the temporary in-

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 SOMEBASIC PROBLEMS
IN CRIMINOLOGY 129

junction was the only relief granted in the necessity to make the attempt
60 per cent of the cases or in 60 per for any one who wishes merely (!) to
cent plus or minus a fraction. As Pro- understand. It would be appalling not
fessor Oliphant says: to believe that a great deal of the
How exact a particularobservationor confusion in contemporary criminology
measurementin any scienceneedsto be de- would disappear, and we have indicated
pends upon the academicor applieduse to some of the steps necessary to accom-
whichit is to be put. The degreeof exacti- plish this. Yet the writer, for one,
tude needed varies with the subject, with remains skeptical about the appearance
the problemof that subject and with the of a set of symbols which will eliminate
aspect of the problemwith which one is misunderstanding. For one comes
called upon to deal. . . . away from these discussions with the
The example cited illustratesa further conviction that whether the data are
fact whichstudentsof the law in particular
shouldkeep in mind when they despairof unique or not, we will for an indefinite
scientificmethodsof study. It is that the future be handicapped by our inability
discriminatingcapacityof the socialagency to identify social data with sufficient
availablefor effectuatingchangesindicated particularity.28
by their studies (e. g., the legislature)will Reference to any of the data dealt
constitute the upper limit of exactitude with in the various social disciplines
which the methods they employ in their supports this opinion. The existence
study need, for many practicalpurposes,to of physical objects which can be
be capableof producing.27 universally and sufflciently identified
NEED FOR STANDARD TERMINOLOGY
and discussed, which can literally be
pointed to anywhere and everywhere,
We have tried, by placing in juxta- facilitates research in the natural
position three leading interpretations of sciences. What social data exist which
social science and results that follow everybody everywhere will identify
from them, to demonstrate the utter uniformly? It may be granted that
futility of attempting to understand the processes of perception are one and
sociological literature without a delib- the same, but this does not alter the
erate, thorough attempt to understand results nor eliminate existing diffi-
the terminology employed; that after culties.
allowances are made for differences in Moreover, one of the most difficult
terminology, conflicts disappear in things imaginable in dealing with social
large measure; and that the necessity phenomena is to find words which do
to make such an analysis and to allow
for differences in terminology is pecu- 28 "The
great PoincarT once remarked that
liarly necessary in the social sciences. while physicists had a subject matter, sociologists
All of these observations apply equally were engaged almost entirely in considering their
methods . . . there is still in this remark a just
to attempts to evaluate criminological rebuke . . to those romantic souls who cherish
research. the persistent illusion that by some new trick of
We should be rare optimists, how- method the social sciences can readily be put on a
ever, if we imagined that the conflicting par with the physical sciences in regard to defi-
niteness and universal demonstrability. The
positions indicated in the above dis- maximum logical accuracy can be attained only
cussion could be removed by a con- by recognizing the exact degree of probability
ference on the adoption of a standard that our subject matter will allow." M. R.
terminology. We have emphasized Cohen, "The Social Sciences and The Natural
Sciences," in Ogburn and Goldenweiser, Social
27Oliphant, H., "Facts, Opinions, and Value- Sciences and Their Interrelations,p. 454; included
Judgments" (1932), 10 Tex, L. Rev., p. 130. also in Cohen's Reason and Nature,

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130 THE ANNALSOFTHEAMERICAN
ACADEMY

not connote to some extent either humanity he shares. Some degree of

approval or disapproval. A perfectly desire for amelioration in human
enormous number of words used in society seems unescapable, and in-
social science more or less subtly imply separable from the study of social
emotional affects of this sort. phenomena.
Research in the physical sciences,
DIFFICULTY OF ATTAINING
however, can be carried on with relative
OBJECTIVITY indifference regarding results one way
Another tremendous difficulty which or another. At the same time it is
besets the student of social phenomena generally believed that magic preceded
is the practical impossibility of achiev- science, and that the high degree of
ing a high degree of objectivity. objectivity which is now found in the
Recognition of the existence and the physical sciences is in large measure
importance of both this and the lin- made possible by the existence of a very
guistic problem in contemporary social large number of abstractions which
research is entirely consistent with all have been created during a long period
three of the positions discussed, and of time.
indeed is the most instructive lesson But we are concerned here with the
that must be derived from them. present status of the social disciplines
Significantly enough, theses that the rather than with future possibilities.
study of social data is indistinguishable And to that end, it is necessary to
from that of physical data in any recognize that men studying human
essential characteristic have not satis- beings are not in the same position as
factorily disposed of the striking fact men studying rock formations. The
that the observer is unavoidably "social data" are studying the ob-
involved in the whole set-up in a server at the same time that he is
manner unlike that found in connection studying them; while he is trying to
with the exact sciences. It is to be control them, they are controlling him
borne in mind that social phenomena or trying to.
do not allow of simple, direct recording Criminology, of all social disciplines,
on physical objects (machines, devices, suffers very considerably from this
litmus, and so forth) as do physical limitation upon our resources. Men
phenomena. There is always the in- who attack person and property are
tervention of the observer who must met by many human responses which
serve as both "conductor" and re- consist of various sorts of behavior,
corder of what he has sensed. but certainly not by the impersonal,
Some of the psychoanalysts, indeed, dispassionate, even indifferent attitude
have suggested that social scientists that is associated with objectivity in
should subject themselves to examina- the physical sciences.
tion in order to discover any com-
BIASED VIEWPOINTS
plexes which might influence them.
This, however, is only a small part of The particular type of functioning of
the difficulty. For every "normal" an individual over a period of years
person is a combination of instincts, undoubtedly affects not only what he
drives, sentiments, and prejudices of observes but how he interprets. Pro-
every sort and description. He may fessionalism among lawyers has its
be unconscious of these preferences; he counterpart in every vocation. The
may think he has them under control; prosecutor is invariably "hard boiled"
but he cannot escape the common to the academician, who in turn is an

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 SOME BASIC PROBLEMSIN CRIMINOLOGY 131

impractical "reformer" to the experi- is the fact that no satisfactory defini-

enced administrator. No doubt the tion of crime exists. There is more
prosecutor considers himself a realist, than a linguistic difficulty involved in
just as the academic person is convinced the inability of criminologists to agree
that he is an impartial observer. upon a definition of their subject
As a matter of fact, all the influences matter. Definition is essential to dis-
of no one knows how many years back, course; in addition to this minimum
operate on both. The prosecutor with logical requirement, it is necessary to
his particular bent has become immedi- bound the areas within which crim-
ately and more sharply conditioned by inologists are to work, for the purpose
being thrown into a fight as champion of actually working there.
of the group and of an unfortunate At this particular time a number of
victim. That the academic person is leading criminologists have adopted
similarly conditioned, though by other the legal definition of crime, i. e., the
influences no less potent, is only violation of a penal law. Now this
another way of saying that he is human definition is adequate for the individual
and that he has lived in a group of whose concern is whether or not he will
human beings. be punished because he violated a law.
It inevitably follows that a great There is point and meaning in the
part of what passes as criminology formal definition of crime for this
consists of apology or condemnation, purpose. But the criminologist who
of "explanation" which is really ap- adopts the formal definition makes his
probation, of expressions of beliefs or principal purpose the study of behavior
convictions in severity or leniency; in which is in violation of penal laws; and
short, of advocacy of one sort or so far as conduct is concerned, no one
another. The invention of techniques has pointed out any common char-
is a valiant effort to diminish this acteristic of criminal behavior so
inevitable human bias and prejudice. defined. On the contrary, lawyers
Admitting that social phenomena have for many years differentiated
can be studied to advantage by natural criminal laws as felonies and mis-
science methods, can it be said that to demeanors, and on the Continent, as
date they have done more than barely crimes, misdemeanors, and violations
scratch the surface? To further im- of mere police orders.
mediate utilization of existing knowl- Yet the formal definition of crime
edge it is necessary, first, to recognize makes no distinctions; and if the crim-
the existence of bias and prejudice; inologists were really influenced by this
second, to make such allowances as we definition in the selection of areas of
can from a detailed knowledge of the research, they would be just as inter-
observer (no life histories can ever be ested in traffic violations as in murder,
complete enough to enable us to allow robbery, or rape. Moreover, a person
accurately and fully for all bias, even if may be guilty of violating some laws
we know how to interpret all the de- (manslaughter) though he does not
tails); and third, to recognize and act at all; and of violating other
account for our own bias as far as laws (narcotic) by being in possession
possible. of drugs though he is entirely innocent
of the fact. About 75 per cent of the
DEFINITION OF CRIME criminal cases tried in the Federal
Symptomatic of the status of crim- courts are the result of laws passed
inology in the hierarchy of the sciences during the last twenty-five years.

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132 THE ANNALS OF THE AMERICANACADEMY

The repeal of the Volstead law will We pass over the dominance of tra-
mean an enormous quantitative limi- ditional techniques, the necessity to
tation of the field. What can be done follow precedent, and the reverence
with reference to studying types of for authority, all of which make the
criminals, i. e., of persons who violate adoption of a scientific attitude all but
penal laws, or regarding the causes of impossible. Related in varying de-
such violations, under these circum- grees to all of these is the very im-
stances? portant consideration that problems
As a matter of fact, criminologists in the administration of law almost
are really influenced by the older always depend upon social policy
sociological definition of crime and by rather than upon social science. A
other considerations. However, they serious difficulty which students of the
have thus far been unable to analyze law encounter when they look to the
their problems and their interests social sciences for assistance in their
sufficiently to define their field; or else own discipline has been pointed out by
criminology is composed of several Professor K. N. Llewellyn as follows:
fields which overlap and intersect at In short, then, as to the data already
so many points that it is impossible to availablefrom the social sciences,one can
detect any common characteristics. say this: all of their materialis suggestive
In either event, this is a serious limita- for us; little of it is more. They have not
tion. gatheredtheir data for our purposes,and
most of what we want to know we shall
USE OF OTHERSOCIALSCIENCES have to find out for ourselves. Not only
IN LAW are hypotheseslikely to be limited to the
There remain a number of addi-
data on which they rest, but data also are
tional special difficulties which con-
selected,recordedand classifiedfor the pur-
front students of the criminal law.29 pose in hand; and data selected, recorded
and classifiedfor one purposeare exceed-
29 ,. .. a science of law cannot be built on ingly likely to be blind or misleadingwhen
experimentation. Like geology its rational approachedforanotherpurpose. The social
branch must rest on testing by observation." scientist has repeatedly left out of con-
H. Oliphant,"A Returnto StareDecisis" (1927), siderationpreciselythe portionsof the situ-
14 A. B. A. Jour. 76. ation which for us are most relevant or
The doctorshave to a degreeintroducedex- puzzling.30
perimentationinto medicine. Thus Dr. F. S. While systematic correlation of law
Lee writes:"The modernphysiciandoesnot rely
on a philosophicalsystem . . . he alters the and other social science is still for the
conditionsandthushe obtainsanalterationof the most part confined to devout exhorta-
phenomenaand a new standpointfromwhichto tion, knowledge from other fields has
view them. He may apply to the diseasepast always seeped into the law."* In the
experience,it is true, but it is past experience
that has been put to the test of modernexperi- seem to be room for experimentation. It would
ment. Moreoverby the aidof furtherexperiment undoubtedly be limited and would require an
he pushes out into the unknown, sees dis- attitude on the part of officials which cannot at
ease from unusualstandpoints,and devisesnew present be expected; but the problem certainly
and hitherto unsuspectedmethods of dealing seems worthy of consideration.
with it." Scientific Features of Modern Medicine 30"The Conditions for and the Aims and
(1911). Methods of Legal Research" (1930), 6 The Am.
It may be questionedwhetherexperimentation Law School Rev. 677.
must be foreverbarredfrom law. In Sweden, 31It is a long stretch from the days when only
legislationis adopted for a limited periodafter those who were as "mad as a wild beast" escaped
studyby a boardof experts. Duringthe ensuing liability to, the recognition by courts in their
period the operationof the statute is studied. actual practices, of borderline cases of abnormal-
Again,in the treatmentof offenderstherewould ity which are not as yet expressly provided for in

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 SOME BASIC PROBLEMS IN CRIMINOLOGY 183

present century only, has the attempt countries, we have taken hardly any
been made by a few legal scholars to deliberate steps to develop the neces-
become thoroughly familiar with at sary technology. In Italy and Ger-
least one social discipline in addition many, for example, the teachers of
to their own. This has been directed criminal law are very frequently com-
by a deeply felt necessity, for, as petent criminologists who direct insti-
Professor Llewellyn has stated, the tutes and carry on research.32
legal scholar cannot bodily take over It should be reasonably clear at this
very much of the work of the social time that a criminology constructed in
scientists in its present form. ignorance of legal problems is all but
impotent to improve the administra-
NEED FOR LAWYER-CRIMINOLOGISTS tion of criminal law. The most strik-
This is unfortunate, and its signifi- ing example of the failure to understand
cance for criminal law cannot be legal purposes and problems and of
exaggerated. Indeed, in a sense, the consequent ineffectuality is provided
whole cause of the inadequacy of by criminal psychiatry, which is gen-
criminology for the criminal law (in erally selected as the high mark of
addition to the limitations of crim- accomplishment in the field. Passing
inology in itself) may be epitomized as over the dogmatismthat arises from
follows: The criminologists are not 32 "Outside of the
English-speaking world
lawyers, and the lawyers are not these things have been understood for a long
criminologists. More specifically, we time. The nineteenth century jurists and law
do not have technologists who are teachers of continental Europe carried scientific
equipped to apply criminology to the study and development of the criminal law a long
administration of the law. In con- way. On the Continent, every land has con-
spicuous leaders in the scientific treatment of
trast with a number of European criminal law. In every land strong teachers and
creative writers and investigators may be found,
most criminal codes. (The Briggs Law in Massa- in criminal law no less than in public law and
chusetts is still the outstanding exception.) private law. Indeed, in the universities of con-
Contributions of chemistry, bacteriology, and tinental Europe specialists in criminal law have
ballistics have been utilized by the courts very known or have learned how to work with
generally. The juvenile court is perhaps the out- specialists in all the sciences that bear on criminal
standing example of an administration of the investigation and penal legislation and adminis-
criminal law which has been influenced con- tration. We, on the other hand, have all but left
siderably by social science. It follows from the the field to enthusiasts and cranks and char-
position taken in this paper that efficient utiliza- latans." R. Pound, " What Can Law Schools
tion of the data and research in the social sciences Do For Criminal Justice?" (1927) 12 Iowa L.
is inevitably dependent upon personnel. The Rev. 112.
recent ecological studies of Park, Shaw, and An example is given by Dr. R. Grassberger,
Sutherland objectify conclusions of experience who writes: "In the spring of 1923 the Austrian
previously held and, moreover, provide a tech- Department of Education ... founded the
nique for a more discriminate utilization of the .. Institute. Incorporated as part of the
knowledge. Other important studies which university Law School. . . . The work of the
command attention are those on parole predic- Institute is divided into three branches . . . I.
tion, especially by Burgess, Glueck, and Vold. Instruction to law students in the criminological
It seems reasonable to expect that with the aid of sciences. . . . The purpose of instruction at the
psychiatry these tables may shortly be utilized Institute is to supplement the legal training af-
not only by parole boards but also by judges in forded the student through the chief lecture
helping to decide doubtful cases of application courses by a varied knowledge which will serve
for probation, and even farther back than that, him later in his capacity as judge, prosecuting
by prosecutors in helping them to decide whether attorney, defense attorney or public official."
to proceed or to nolle prosequi in doubtful cases. "The University Institute of the Criminologic
Here would seem to be a unique opportunity for Sciences and Criminalistics in Vienna" (1932), 23
experimentation. Jour. of Cr. Law and Criminol. 395-6.

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134 THE ANNALS OF THE AMERICAN ACADEMY

neglect to appreciate the significance the administration of the law. And

of the existence of a dozen conflicting we may conclude, in general, that the
schools of psychology, and of the effect usefulness of criminology in law must
that this must have upon administra- inevitably depend upon the appearance
tive officials, there has been a failure to of lawyer-criminologists;33 that is, of
consider sufficiently the distinctive experts who have been trained in both
ends of the law and the philosophy fields and are able to understand the
through which these ends have been problems that arise in the administra-
conceived. tion of the criminal law and know how
Only by making this attempt is it to utilize criminology in the solution
possible to understand, for example, of them.
33 "What is needed is that some scholar, or
why individualization is given only a
limited application as a result of the better, some group of scholars, think ahead of the
subject, uncover its problems before they arise in
legal assumption of free-willing and the courts, perceive the relation of its problems to
therefore responsible individuals, while the history of the criminal law and to the ends of
psychiatry proceeds upon other hy- the criminal law to-day, study the adaptation of
our legal materials to those problems, and thus
potheses, the result being that it is
constructed upon an entirely different give direction to doctrinal development and ad-
judication, and legislation." R. Pound, "What
level. Recognition of this would per- Can Law Schools Do For Criminal Justice?"
mit greater utilization of psychiatry in (1927), 12 Iowa L. Rev. 110.

Jerome Hall is professor of law at the University of

North Dakota, is on leave of absence,and the holderof a
Special Teacher's Fellowship in Columbia University
School of Law. He practiced law in Chicago from
1923 to 1929, during which time he was also
lecturer on law at Indiana University (Gary Ex-
tension). He was an assistant State's attorney of
Cook County, Illinois, in the summer of 1931. He
has written a numberof articles on criminal law and on
the relationship betweenlaw and the social sciences.

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