If, then, the postulate is little certain, we have gained nothing and reach out into the dark; if its certainty is great we no longer have an a.n.a.logy, we have a natural law. Hence, Whately uses the term a.n.a.logy as an expression for the similarity of relation, and in this regard the use of a.n.a.logy for our real work has no special significance. Concerning so-called false a.n.a.logies and their importance cf. J. Schiel"s Die Methode der induktiven Forschung (Braunschweig 1868).
Section 28. (f) Probability.
Inasmuch as the work of the criminal judge depends upon the proof of evidence, it is conceivable that the thing for him most important is that which has evidential character or force.[1] A sufficient definition of evidence or proof does not exist because no bounds have been set to the meaning of "Proved." All disciplines furnish examples of the fact that things for a long time had probable validity, later indubitable validity; that again some things were considered proved and were later shown to be incorrect, and that many things at one time wobbly are in various places, and even among particular persons, supposed to be at the limits of probability and proof. Es-
pecially remarkable is the fact that the concept of *the proved is very various in various sciences, and it would be absorbing to establish the difference between what is called proved and what only probable in a number of given examples by the mathematician, the physicist, the chemist, the physician, the naturalist, the philologist, the historian, the philosopher, the lawyer, the theologian, etc. But this is no task for us and n.o.body is called upon to determine who knows what "Proved" means. It is enough to observe that the differences are great and to understand why we criminalists have such various answers to the question: Is this proved or only probable? The varieties may be easily divided into groups according to the mathematical, philosophic, historical or naturalistic inclinations of the answerer. Indeed, if the individual is known, what he means by "proved" can be determined beforehand. Only those minds that have no especial information remain confused in this regard, both to others and to themselves.
[1] B. Petronievics: Der Satz vom Grunde. Leipzig 1898.
Sharply to define the notion of "proved" would require at least to establish its relation to usage and to say: What we desire leads us to an *a.s.sumption, what is possible gives us *probability, what appears certain, we call *proved. In this regard the second is always, in some degree, the standard for the first (desires, e. g., cause us to act; one becomes predominant and is fixed as an a.s.sumption which later on becomes clothed with a certain amount of reliability by means of this fixation).
The first two fixations, the a.s.sumption and the probability, have in contrast to their position among other sciences only a heuristic interest to us criminalists. Even a.s.sumptions, when they become hypotheses, have in various disciplines a various value, and the greatest lucidity and the best work occur mainly in the quarrel about an acutely constructed hypothesis.
*Probability has a similar position in the sciences. The scholar who has discovered a new thought, a new order, explanation or solution, etc., will find it indifferent whether he has made it only highly probable or certain. He is concerned only with the idea, and a scholar who is dealing with the idea for its own sake will perhaps prefer to bring it to a great probability rather than to indubitable certainty, for where conclusive proof is presented there is no longer much interest in further research, while probability permits and requires further study. But our aim is certainty and proof only, and even a high degree of probability is no better than untruth and can not count. In pa.s.sing judgment and for the purpose of judgment
a high degree of probability can have only corroborative weight, and then it is probability only when taken in itself, and proof when taken with regard to the thing it corroborates. If, for example, it is most probable that X was recognized at the place of a crime, and if at the same time his evidence of alibi has failed, his footmarks are corroborative; so are the stolen goods which have been seen in his possession, and something he had lost at the place of the crime which is recognized as his property, etc. ln short, when all these indices are in themselves established only as highly probable, they give under certain circ.u.mstances, when taken together, complete certainty, because the coincidence of so many high probabilities must be declared impossible if X were not the criminal.
In all other cases, as we have already pointed out, *a.s.sumption and probability have only a heuristic value for us lawyers. With the a.s.sumption, we must of course count; many cases can not be begun without the a.s.sistance of a.s.sumption. Every only half- confused case, the process of which is unknown, requires first of all and as early as possible the application of some a.s.sumption to its material. As soon as the account is inconsistent the a.s.sumption must be abandoned and a fresh one and yet again a fresh one a.s.sumed, until finally one holds its own and may be established as probable. It then remains the center of operation, until it becomes of itself a proof or, as we have explained, until so many high probabilities in various directions have been gathered, that, taken in their order, they serve evidentially. A very high degree of probability is sufficient in making complaints; but sentencing requires "certainty," and in most cases the struggle between the prosecution and the defense, and the doubt of the judge, turns upon the question of probability as against proof.[1]
[1] Of course we mean by "proof" as by "certainty" only the highest possible degree of probability.
That probability is in this way and in a number of relations, of great value to the criminalist can not appear doubtful. Mittermaier defines its significance briefly: "Probability naturally can never lead to sentence. It is, however, important as a guide for the conduct of the examiner, as authorizing him to take certain measures; it shows how to attach certain legal processes in various directions."
Suppose that we review the history of the development of the theory of probability. The first to have attempted a sharp distinction between demonstrable and probable knowledge was Locke. Leibnitz was the first to recognize the importance of the theory
of probability for inductive logic. He was succeeded by the mathematician Bernoulli and the revolutionist Condorcet. The theory in its modern form was studied by Laplace, Quetelet, Herschel, von Kirchmann, J. von Kries, Venn, Cournot, Fick, von Bortkiewicz, etc. The concept that is called probability varies with different authorities. Locke[1] divides all fundamentals into demonstrative and probable. According to this cla.s.sification it is probable that "all men are mortal," and that "the sun will rise to-morrow." But to be consistent with ordinary speech the fundamentals must be cla.s.sified as evidence, certainties, and probabilities. By certainties I understand such fundamentals as are supported by experience and leave no room for doubt or consideration-everything else, especially as it permits of further proof, is more or less probable.
[1] Locke: Essay on the Human Understanding.
Laplace[2] spoke more definitely-"Probability depends in part on our ignorance, in part on our knowledge ...
[2] Laplace: Essay Philosophique sur les Probabilits. Paris 1840."The theory of probability consists in the reduction of doubts of the same cla.s.s of a definite number of equally possible cases in such a way that we are equally undetermined with regard to their existence, and it further consists in the determination of the number of those cases which are favorable to the result the probability of which is sought. The relation of this number to the number of all possible cases is the measure of the probability. It is therefore a fraction the numerator of which is derived from the number of cases favorable to the result and the denominator from the number of all possible cases." Laplace, therefore, with J. S. Mill, takes probability to be a low degree of certainty, while Venn[3] gives it an objective support like truth. The last view has a great deal of plausibility inasmuch as there is considerable doubt whether an appearance is to be taken as certain or as only probable. If this question is explained, the a.s.sertor of certainty has a.s.sumed some objective foundation which is indubitable at least subjectively. Fick represents the establishment of probability as a fraction as follows: "The probability of an incompletely expressed hypothetical judgment is a real fraction proved as a part of the whole universe of conditions upon which the realization of the required result necessarily depends.
[3] Venn: The Logic of Chance.
"According to this it is hardly proper to speak of the probability of any result. Every individual event is either absolutely necessary
or impossible. The probability is a quality which can pertain only to a hypothetical judgment."[1]
[1] Philos. Versuch ber die Wahrscheinlichkeiten. Wrzburg 1883.That it is improper to speak of the probability of a result admits of no doubt, nor will anybody a.s.sert that the circ.u.mstance of to- morrow"s rain is in itself probable or improbable-the form of expression is only a matter of usage. It is, however, necessary to distinguish between conditioned and unconditioned probability. If I to-day consider the conditions which are attached to the ensuing change of weather, if I study the temperature, the barometer, the cloud formation, the amount of sunlight, etc., as conditions which are related to to-morrow"s weather as its forerunners, then I must say that to-morrow"s rain is probable to such or such a degree. And the correctness of my statement depends upon whether I know the conditions under which rain *must appear, more or less accurately and completely, and whether I relate those conditions properly. With regard to unconditioned probabilities which have nothing to do with the conditions of to-day"s weather as affecting to-morrow"s, but are simply observations statistically made concerning the number of rainy days, the case is quite different. The distinction between these two cases is of importance to the criminalist because the subst.i.tution of one for the other, or the confusion of one with the other, will cause him to confuse and falsely to interpret the probability before him. Suppose, e. g., that a murder has happened in Vienna, and suppose that I declare immediately after the crime and in full knowledge of the facts, that according to the facts, i. e., according to the conditions which lead to the discovery of the criminal, there is such and such a degree of probability for this discovery. Such a declaration means that I have calculated a conditioned probability. Suppose that on the other hand, I declare that of the murders occurring in Vienna in the course of ten years, so and so many are unexplained with regard to the personality of the criminal, so and so many were explained within such and such a time,-and consequently the probability of a discovery in the case before us is so and so great. In the latter case I have spoken of unconditioned probability. Unconditioned probability may be studied by itself and the event compared with it, but it must never be counted on, for the positive cases have already been reckoned with in the unconditioned percentage, and therefore should not be counted another time. Naturally, in practice, neither form of probability is frequently calculated in figures; only an approximate
interpretation of both is made. Suppose that I hear of a certain crime and the fact that a footprint has been found. If without knowing further details, I cry out: "Oh! Footprints bring little to light!" I have thereby a.s.serted that the statistical verdict in such cases shows an unfavorable percentage of unconditional probability with regard to positive results. But suppose that I have examined the footprint and have tested it with regard to the other circ.u.mstances, and then declared: "Under the conditions before us it is to be expected that the footprint will lead to results"- then I have declared, "According to the conditions the conditioned probability of a positive result is great." Both a.s.sertions may be correct, but it would be false to unite them and to say, "The conditions for results are very favorable in the case before us, but generally hardly anything is gained by means of footprints, and hence the probability in this case is small." This would be false because the few favorable results as against the many unfavorable ones have already been considered, and have already determined the percentage, so that they should not again be used.
Such mistakes are made particularly when determining the complicity of the accused. Suppose we say that the manner of the crime makes it highly probable that the criminal should be a skilful, frequently-punished thief, i. e., our probability is conditioned. Now we proceed to unconditioned probability by saying: "It is a well-known fact that frequently-punished thieves often steal again, and we have therefore two reasons for the a.s.sumption that X, of whom both circ.u.mstances are true, was the criminal." But as a matter of fact we are dealing with only one identical probability which has merely been counted in two ways. Such inferences are not altogether dangerous because their incorrectness is open to view; but where they are more concealed great harm may be done in this way.
A further subdivision of probability is made by Kirchmann.[1]
He distinguished: [1] ber die Wahrscheinlicbkeit, Leipzig 1875.(1) General probability, which depends upon the causes or consequences of some single uncertain result, and derives its character from them. An example of the dependence on causes is the collective weather prophecy, and of dependence on consequences is Aristotle"s dictum, that because we see the stars turn the earth must stand still. Two sciences especially depend upon such probabilities: history and law, more properly the practice and use of criminal
law. Information imparted by men is used in both sciences, this information is made up of effects and hence the occurrence is inferred from as cause.
(2) Inductive probability. Single events which must be true, form the foundation, and the result pa.s.ses to a valid universal. (Especially made use of in the natural sciences, e. g., in diseases caused by bacilli; in case X we find the appearance A and in diseases of like cause Y and Z, we also find the appearance A. It is therefore probable that all diseases caused by bacilli will manifest the symptom A.)
(3) Mathematical Probability. This infers that A is connected either with B or C or D, and asks the degree of probability. I. e.: A woman is brought to bed either with a boy or a girl: therefore the probability that a boy will be born is one-half.
Of these forms of probability the first two are of equal importance to us, the third rarely of value, because we lack arithmetical cases and because probability of that kind is only of transitory worth and has always to be so studied as to lead to an actual counting of cases. It is of this form of probability that Mill advises to know, before applying a calculation of probability, the necessary facts, i. e., the relative frequency with which the various events occur, and to understand clearly the causes of these events. If statistical tables show that five of every hundred men reach, on an average, seventy years, the inference is valid because it expresses the existent relation between the causes which prolong or shorten life.
A further comparatively self-evident division is made by Cournot, who separates subjective probability from the possible probability pertaining to the events as such. The latter is objectively defined by Kries[1] in the following example:
[1] J. v. Kries: ber die Wahrseheinlichkeit Il. Mglichkeit u. ihre Bedeutung in Strafrecht. Zeitschrift f. d. ges. St. R. W. Vol. IX, 1889."The throw of a regular die will reveal, in the great majority of cases, the same relation, and that will lead the mind to suppose it objectively valid. It hence follows, that the relation is changed if the shape of the die is changed." But how "this objectively valid relation," i. e., substantiation of probability, is to be thought of, remains as unclear as the regular results of statistics do anyway. It is hence a question whether anything is gained when the form of calculation is known.
Kries says, "Mathematicians, in determining the laws of probability, have subordinated every series of similar cases which take
one course or another as if the constancy of general conditions, the independence and chance equivalence of single events, were identical throughout. Hence, we find there are certain simple rules according to which the probability of a case may be calculated from the number of successes in cases observed until this one and from which, therefore, the probability for the appearance of all similar cases may be derived. These rules are established without any exception whatever." This statement is not inaccurate because the general applicability of the rules is brought forward and its use defended in cases where the presuppositions do not agree. Hence, there are delusory results, e. g., in the calculation of mortality, of the statements of witnesses and judicial deliverances. These do not proceed according to the schema of the ordinary play of accident. The application, therefore, can be valid only if the constancy of general conditions may be reliably a.s.sumed.
But this evidently is valid only with regard to unconditioned probability which only at great intervals and transiently may influence our practical work. For, however well I may know that according to statistics every xth witness is punished for perjury, I will not be frightened at the approach of my xth witness though he is likely, according to statistics, to lie. In such cases we are not fooled, but where events are confused we still are likely to forget that probabilities may be counted only from great series of figures in which the experiences of individuals are quite lost.
Nevertheless figures and the conditions of figures with regard to probability exercise great influence upon everybody; so great indeed, that we really must beware of going too far in the use of figures. Mill cites a case of a wounded Frenchman. Suppose a regiment made up of 999 Englishmen and one Frenchman is attacked and one man is wounded. No one would believe the account that this one Frenchman was the one wounded. Kant says significantly: "If anybody sends his doctor 9 ducats by his servant, the doctor certainly supposes that the servant has either lost or otherwise disposed of one ducat." These are merely probabilities which depend upon habits. So, it may be supposed that a handkerchief has been lost if only eleven are found, or people may wonder at the doctor"s ordering a tablespoonful every five quarters of an hour, or if a job is announced with $2437 a year as salary.
But just as we presuppose that wherever the human will played any part, regular forms will come to light, so we begin to doubt that such forms will occur where we find that accident, natural
law, or the unplanned coperation of men were determining factors, If I permit anybody to count up accidentally concurrent things and he announces that their number is one hundred, I shall probably have him count over again. I shall be surprised to hear that somebody"s collection contains exactly 1000 pieces, and when any one cites a distance of 300 steps I will suppose that he had made an approximate estimation but had not counted the steps. This fact is well known to people who do not care about accuracy, or who want to give their statements the greatest possible appearance of correctness; hence, in citing figures, they make use of especially irregular numbers, e. g. 1739, <7>, 3.25%, etc. I know a case of a vote of jurymen in which even the proportion of votes had to be rendered probable. The same jury had to pa.s.s that day on three small cases. In the first case the proportion was 8 for, 4 against, the second case showed the same proportion and the third case the same. But when the foreman observed the proportion he announced that one juryman must change his vote because the same proportion three times running would appear too improbable! If we want to know the reason for our superior trust in irregularity in such cases, it is to be found in the fact that experience shows nature, in spite of all her marvelous orderliness in the large, to be completely free, and hence irregular in little things. Hence, as Mill shows in more detail, we expect no ident.i.ty of form in nature. We do not expect next year to have the same order of days as this year, and we never wonder when some suggestive regularity is broken by a new event. Once it was supposed that all men were either black or white, and then red men were discovered in America. Now just exactly such suppositions cause the greatest difficulties, because we do not know the limits of natural law. For example, we do not doubt that all bodies on earth have weight. And we expect to find no exception to this rule on reaching some undiscovered island on our planet; all bodies will have weight there as well as everywhere else. But the possibility of the existence of red men had to be granted even before the discovery of America. Now where is the difference between the propositions: All bodies have weight, and, All men are either white or black? It may be said circularly the first is a natural law and the second is not. But why not? Might not the human body be so organized that according to the natural law it would be impossible for red men to exist? And what accurate knowledge have we of pigmentation? Has anybody ever seen a green horse? And is the accident that n.o.body has ever seen one to prevent the discovery of green horses in the heart of Africa? May, perhaps, somebody not breed green horses by crossings or other experiments? Or is the existence of green horses contrary to some unknown but invincible natural law? Perhaps somebody may have a green horse to-morrow; perhaps it is as impossible as water running up hill.
To know whether anything is natural law or not always depends upon the grade and standing of our immediate experience-and hence we shall never be able honestly to make any universal proposition. The only thing possible is the greatest possible accurate observation of probability in all known possible cases, and of the probability of the discovery of exceptions. Bacon called the establishment of reliable a.s.sumptions, counting up without meeting any contradictory case. But what gives us the law is the manner of counting. The untrained mind accepts facts as they occur without taking the trouble to seek others; the trained mind seeks the facts he needs for the premises of his inference. As Mill says, whatever has shown itself to be true without exception may be held universal so long as no doubtful exception is presented, and when the case is of such a nature that a real exception could not escape our observation.
This indicates how we are to interpret information given by others. We hear, "Inasmuch as this is always so it may be a.s.sumed to be so in the present case." Immediate acceptance of this proposition would be as foolhardy as doubt in the face of all the facts. The proper procedure is to examine and establish the determining conditions, i. e., who has counted up this "always," and what caution was used to avoid the overlooking of any exception. The real work of interpretation lies in such testing. We do not want to reach the truth with one blow, we aim only to approach it. But the step must be taken and we must know how large it is to be, and know how much closer it has brought us to the truth. And this is learned only through knowing who made the step and how it was made. Goethe"s immortal statement, "Man was not born to solve the riddle of the universe, but to seek out what the problem leads to in order to keep himself within the limits of the conceivable," is valid for us too.
Our great mistake in examining and judging often lies in our setting too much value upon individual circ.u.mstances, and trying to solve the problem with those alone, or in not daring to use any given circ.u.mstance sufficiently. The latter represents that stupidity which is of use to scientific spirits when they lack complete proof
of their points, but is dangerous in practical affairs. As a rule, it is also the consequence of the failure to evaluate what is given, simply because one forgets or is too lazy to do so. Proper action in this regard is especially necessary where certain legal proceedings have to occur which are ent.i.tled to a definite degree of probability without requiring certainty, i. e., preliminary examinations, arrests, investigations of the premises, etc. No law says how much probability is in such cases required. To say how much is impossible, but it is not unwise to stick to the notion that the event must appear true, if not be proved true, i. e., nothing must be present to destroy the appearance of truth. As Hume says, "Whenever we have reason to trust earlier experiences and to take them as standards of judgment of future experiences, these reasons may have probability."
The place of probability in the positive determination of the order of modern criminal procedure is not insignificant. When the law determines upon a definite number of jurymen or judges, it is probable that this number is sufficient for the discovery of the truth. The system of prosecution establishes as a probability that the accused is the criminal. The idea of time-lapse a.s.sumes the probability that after the pa.s.sage of a certain time punishment becomes illusory, and prosecution uncertain and difficult. The inst.i.tution of experts depends on the probability that the latter make no mistakes. The warrant for arrest depends on the probability that the accused behaved suspiciously or spoke of his crime, etc. The oath of the witness depends on the probability that the witness will be more likely to tell the truth under oath, etc.
Modern criminal procedure involves not only probabilities but also various types of possibility. Every appeal has for its foundation the possibility of an incorrect judgment; the exclusion of certain court officials is based on the possibility of prejudice, or at least on the suspicion of prejudice; the publicity of the trial is meant to prevent the possibility of incorrectness; the revision of a trial depends on the possibility that even legal sentences may be false and the inst.i.tution of the defendant lawyer depends upon the possibility that a person without defense may receive injustice. All the formalities of the action of the court a.s.sume the possibility that without them improprieties may occur, and the inst.i.tution of seizing letters and messages for evidence, a.s.serts only the possibility that the latter contain things of importance, etc.
When the positive dicta of the law deal with possibility and proba-
bility in questions of great importance the latter become especially significant.
We have yet to ask what is meant by "rule" and what its relation is to probability. Scientifically "rule" means law subjectively taken and is of equal significance with the guiding line for one"s own conduct, whence it follows that there are only rules of art and morality, but no rules of nature. Usage does not imply this interpretation. We say that as a rule it hails only in the daytime; by way of exception, in the night also; the rule for the appearance of whales indicates that they live in the Arctic Ocean; a general rule indicates that bodies that are especially soluble in water should dissolve more easily in warm than in cold water, but salt dissolves equally well in both. Again we say: As a rule the murderer is an unpunished criminal; it is a rule that the brawler is no thief and vice versa; the gambler is as a rule a man of parts, etc. We may say therefore, that regularity is equivalent to customary recurrence and that whatever serves as rule may be expected as probable. If, i. e., it be said, that this or that happens as a rule, we may suppose that it will repeat itself this time. It is not permissible to expect more, but it frequently happens that we mistake rules permitting exceptions for natural laws permitting none. This occurs frequently when we have lost ourselves in the regular occurrences for which we are ourselves responsible and suppose that because things have been seen a dozen times they must always appear in the same way. It happens especially often when we have heard some phenomenon described in other sciences as frequent and regular and then consider it to be a law of nature. In the latter case we have probably not heard the whole story, nor heard general validity a.s.signed to it. Or again, the whole matter has long since altered. Lotze wrote almost half a century ago, that he had some time before made the statistical observation that the great positive discoveries of exact physiology have an average life of about four years. This noteworthy statement indicates that great positive discoveries are set up as natural laws only to show themselves as at most regular phenomena which have no right to general validity. And what is true of physiology is true of many other sciences, even of the great discoveries of medicine, even legal medicine. This, therefore, should warn against too much confidence in things that are called "rules." False usage and comfortable dependence upon a rule have very frequently led us too far. Its unreliability is shown by such maxims as "Three misses make a rule" or "Many stupidities
taken together give a golden rule of life," or "To-day"s exception is to-morrow"s rule," or the cla.s.sical perversion: "The rule that there are no rules without exception is a rule without exception, hence, there is one rule without exception."
The unreliability of rules is further explained by their rise from generalization. We must not generalize, as Schiel says, until we have shown that if there are cases which contradict our generalizations we know those contradictions. In practice approximate generalizations are often our only guides. Natural law is too much conditioned, cases of it too much involved, distinctions between them too hard to make, to allow us to determine the existence of a natural phenomenon in terms of its natural characteristics as a part of the business of our daily life. Our own age generalizes altogether too much, observes too little, and abstracts too rapidly. Events come quickly, examples appear in ma.s.ses, and if they are similar they tend to be generalized, to develop into a rule, while the exceptions which are infinitely more important are un.o.bserved, and the rule, once made, leads to innumerable mistakes.
Section 29. (g) Chance.
The psychological significance of what we call chance depends upon the concept of chance and the degree of influence that we allow it to possess in our thinking. What is generally called chance, and what is called chance in particular cases, will depend to a significant degree upon the nature of the case. In progressive sciences the laws increase and the chance-happenings decrease; the latter indeed are valid only in particular cases of the daily life and in the general business of it. We speak of chance or accident when events cross which are determined in themselves by necessary law, but the law of the crossing of which is unknown. If, e. g., it is observed that where there is much snow the animals are white, the event must not be attributed to accident, for the formation of snow in high mountains or in the north, and its long stay on the surface of the earth develop according to special natural laws, and the colors of animals do so no less-but that these two orderly series of facts should meet requires a third law, or still better, a third group of laws, which though unknown some time ago, are now known to every educated person.
For us lawyers chance and the interpretation of it are of immense importance not only in bringing together evidence, but in every case of suspicion, for the problem always arises whether a causal
relation may be established between the crime and the suspect, or whether the relation is only accidental. "Unfortunate coincidence" -"closely related connection of facts"-"extraordinary acc.u.mulation of reason for suspicion,"-all these terms are really chance mistaken for causation. On the knowledge of the difference between the one and the other depends the fate of most evidence and trials. Whoever is fortunate enough in rightly perceiving what chance is, is fortunate in the conduct of his trial.
Is there really a theory of chance? I believe that a direct treatment of the subject is impossible. The problem of chance can be only approximately explained when all conceivable chance-happenings of a given discipline are brought together and their number reduced by careful search for definite laws. Besides, the problem demands the knowledge of an extremely rich casuistry, by means of which, on the one hand, to bring together the manifoldness of chance events, and on the other to discover order. Enough has been written about chance, but a systematic treatment of it must be entirely theoretical. So Windelband"s[1] excellent and well-ordered book deals with relations (chance and cause, chance and law, chance and purpose, chance and concept) the greatest value of which is to indicate critically the various definitions of the concept of chance. Even though there is no definition which presents the concept of chance in a completely satisfactory manner, the making of such definitions is still of value because one side of chance is explained and the other is thereby seen more closely. Let us consider a few of these and other definitions. Aristotle says that the accidental occurs, , according to nature. Epicurus, who sees the creation of the world as a pure accident, holds it to occur . Spinoza believes nothing to be contingent save only according to the limitations of knowledge; Kant says that conditioned existence as such, is called accidental; the unconditioned, necessary. Humboldt: "Man sees those things as accident which he can not explain genetically." Schiel: "Whatever may not be reduced back to law is called accidental." Quetelet: "The word chance serves officiously to hide our ignorance." Buckle derives the idea of chance from the life of nomadic tribes, which contains nothing firm and regulated. According to Trendelenburg chance is that which could not be otherwise. Rosenkranz says: Chance is a reality which has only the value of possibility, while Fischer calls chance the individualized fact, and Lotze identifies it with everything that is not valid as a natural purpose. For Windelband "chance consists, according to usage, in the merely factual but not necessary transition from a possibility to an actuality. Chance is the negation of necessity. It is a contradiction to say `This happened by accident," for the word `by" expressed a cause."
[1] Windelband: Die Lehren vom Zufall. Berlin 1870.
A. Hfler[1] says most intelligently, that the contradiction of the idea of chance by the causal law may be easily solved by indicating the especial relativity of the concept. (Accidental with regard to *one, but otherwise appearing as a possible causal series).[1] Cf. S. Freud: Psychopathologie des Alltagsleben.
The lesson of these definitions is obvious. What we call chance plays a great rle in our legal work. On our recognizing a combination of circ.u.mstances as accidental the result of the trial in most cases depends, and the distinction between accident and law depends upon the amount of knowledge concerning the events of the daily life especially. Now the use of this knowledge in particular cases consists in seeking out the causal relation in a series of events which are adduced as proof, and in turning accident into order. Or, in cases where the law which unites or separates the events can not be discovered, it may consist in the very cautious interpretation of the combination of events on the principle simul c.u.m hoc non est propter hoc.Section 30. (h) Persuasion and Explanation.