The Positive School of Criminology

Fri

e second ideal which this invitation called up before my mind's vision was this: The ideal of young people of Italy, united in morals and intellectual pursuits, feeling in their social lives the glow of a great aim. It would matter little whether this aim would agree with my own ideas or be opposed to them, so long as it should be an ideal which would lift the aspirations of the young people out of the fatal grasp of egoistic interests. Of course, we positivists know very well, that the material requirements of life shape and determine also the moral and intellectual aims of human consciousness. But positive science declares the following to be the indispensable requirement for the regeneration of human ideals

such a gloomy and painful contrast with the splendor of present-day civilization. The 19th century has won a great victory over mortality and infectious diseases by means of the masterful progress of physiology and natural science. But while contagious diseases have gradually diminished, we see on the other hand that moral diseases are growing more numerous in our so-called civilization. While typhoid fever, smallpox, cholera and diphtheria retreated before the remedies which enlightened science applied by means of the experimen

f the scientist is rather a sort of electrical accumulator, which feels and assimilates the vibrations and heart-beats of life, its splendor and its shame, and derives therefrom the conviction that it must of necessity provide for definite social wants. And on the other hand, it would be an evidence of intellectual short-sightedness on the part of the positivist man of science, if he did not recognize the historical accomplishments, which his predecessors on the field of science have left behind as indelible traces of their struggle against the unknown in that brilliant and irksome domain. For this reason, the adherents of the positive school of criminology feel the most sincere reverence for the classic school of criminology. And I am glad today, in accepting the invitation of the students of Naples, to say, that this is another reason why their invitation was welcome to me. It is now 16 years since I gave in this same hall a lecture on positive criminology, which

precedent in the history of this university, which makes scientific propaganda at this place very agreeable for a positivist. It is that six years before that introductory statement by Pessina, Giovanni Bovio gave lectures at this university, which he published later on under the title of "A Critical Study of Criminal Law." Giovanni Bovio performed in this monograph the function of a critic, but the historical time of his thought, prevented him from taking part in the construction of a new science. However, he prepared the ground for new ideas, by pointing out all the rifts and weaknesses of the old building. Bovio maintained that which Gioberti, Ellero, Conforti, Tissol had already maintained, namely that it is impossible to solve the problem which is still the theoretical foundation of the classic school of criminology, the problem of the relation between punishment and crime. No man, no scientist, no legislator, no judge, has ever been able to indicate any absolute standard, which would enable us to say that equity demands a definite punishment for a definite

grasp of this internal contradiction, must turn to the civil law and ask for help in its weakness. The same thought had already been illumined by a ray from the bright mind of Filangieri, who died all too soon. And we can derive from this fact the

he positivist tendency in criminal science, such as Penta, Zuccarelli, and others, whom you know. Nevertheless I feel that this faculty of jurisprudence still lacks oxygen in the study of criminal law, because its thought is still influenced by the overwhelming au

mind toward the study of criminology; and its birth is also due to the peculiar condition our country with its gr

shed in the Neapolitan Journal of Philosophy and Literature an essay on criminality, in which he declared that the dangerousness of the criminal was the criterion by which society should measure the function of its defense against the disease of crime. And in the same year, 1878, I took occasion to publish a monograph on the denial of free will and personal responsibility, in which I declared frankly that from now on the science of crime and punishment must look for the fundamental facts of a science of social defense against crime in the human and social life itself. The simultaneous publication of these three monographs caused a stir. The teachers of classic criminology, who had taken kindly to the recommendations of Pessina and Ellero, urging them to study the natural sources of crime, met the new ideas with contempt, when the new methods made a determined and radical departure, and became not only the critics, but the zealous opponents of the new theories. And this is easy to understand. For the struggle for existence is an irresistible law of nature, as well for the thousands of germs scattered to the w

nst all that was barbarian in the mediaeval laws and set loose a storm of enthusiasm among the encyclopedists, and even some of the members of government, in France, he was met by a wave of opposition, calumny and accusation on the part

obtained a confession. Cesare Beccaria rose with others against the torture. Thereupon the judges and jurists protested that penal justice would be impossible, because it could not get any information, since a man suspected of a crime would not confess his guilt voluntarily. Hence they accused Beccaria of being the protector of robbers and murderers, because he wanted to abolish the only means of compelling them to a confession, the torture. But Cesare Beccaria had on his side the magic power of truth. He was truly the electric accumulator of his time, who gathered from its atmosphere the presage of the coming revolution, the sti

orrible dungeons, loaded down with chains, tortured a

triere and committed the brave act of freeing the insane of the chains that weighed them down. He demonstrated in practice that the insane, when freed of their chains, became quieter, instead of creating wild disorder and destruction. This great revolution of Pinel, Chiarugi, and others, changed the attitude of the public mind toward the insane. While formerly insanity had been regarded as a moral sin, the

ividual who leaves the path of virtue and chooses the path of crime, and therefore it must be suppressed by meeting it with a proportionate quantity of punishment. This is to this day the current conception of crime. And the illusion of a free human will (the only miraculous factor in the eternal ocean of cause and effect) leads to the assumption that o

nal who wills; in order to be a criminal it is rather necessary that the individual should find himself permanently or transitorily in such personal, physical and moral conditions, and live in such an environment, which become for him a chain of cause and effect, externally an

d, because it leaves the penal justice on the same theoretical and practical basis which it had in the Middle Age and in classic antiquity, that is to say, based on the idea of a moral responsibility of the individual. For Beccaria, for Carrara, for their predecessors, this idea is no more nor less than that mentioned in books 47 and 48 of the Digest: "The criminal is li

om the time of Beccaria, before the penal codes showed signs of the reformatory influence of the classic school of criminology. So that it has also taken quite a long time to establish it so well that it became accepted by general consent, as it is today. The positive school of criminology was born in 1878, and although it does not stand for a mere reform of the methods of criminal justice, but for a complete and

much, in which he says: "A man is responsible for the crimes which he commits; if, in committing a crime, his will is half free, he is responsible to the extent of one-half; if one-third, he is responsible one-third." There you have the uncompromising and absolute classic theorem. But in the penal code of 1890, you will find that the famous article 45 intends to base the responsibility for a crime on the simple will, to the exclusion of the free

he did not want to commit it. But this is an eclectic way out of the difficulty, which settles nothing, for in the same code we have the rule that involuntary criminals are also punished, so that involuntary killing and wounding are punished with imprisonment the same as voluntary deeds of this

that case he would be indirectly to blame); he has simply forgotten from sheer fatigue to do his duty; he has had no intention whatever, and yet you hold him responsible in spite of all that! The fundamental logic of your reasoning in this case corresponds to the logic of the things. Does it not happen every day in the administration of justice that the judges forget about the neutral expedient of the legislator who devised this relative progress of the penal code, which pretends to base the responsibility of a man on the neutral and naive criterion of a will without freedom of will? Do they not follow their old mental habits in the administration of justice and apply the obsolete criterion of the free will, which the legislator thought fit to abandon? We see, then, as a result of this imperfect and insincere innovation in penal legislation this flagrant contradiction, that the

should find a defending lawyer who would demand the appointment of a medical expert, watch the reception he would get from the judge. When justice is surprised by a beastly and strange crime, it feels the entire foundation of its premises shaking, it halts for a moment, it calls in the help of legal medicine, and reflects before it sentences. But in t

hich deprived him of consciousness or of the freedom of action. But if the judge considers it dangerous to acquit t

as to considerably decrease the responsibility, without eliminating it entirely, th

tiary, imprisonment for

oss of civic rights, a loss of t

three to ten years; if of more than six years, but not more than twelve, it is reduced to fr

is reduced

may order the prisoner to a workhouse, until the proper authorities objec

igent and serene judge who is touched by this painful understanding of the actual human life. Then he may, under the illogical conditions of penal justice, with

ou grant them in good faith, and then you admit that the man was in circumstances which reduced his moral responsibility, and thereby the extenuating circumstances become a denial of justice. For if your conviction concerning such circumstances were sincere, you would go to the bottom of them and examine with the light of your understanding all those innumerable conditions which contribute toward those extenuating circumstances. But what are those extenuating circumstances? Family conditions? Take it that a child is left alone by its parents, who are swallowed up in the whirl of modern industry, which overthrows the laws of nature and forbids the necessary rest, becaus

annot be summed up in a few short words. I can only say that the tendency of modern natural sciences, in physiology as well as psychology, has overruled the illusions of those who would fain persist in watching psychological phenomena merely within themselves and think that they can understand them without any other means. On the contrary, positive science, backed by the testimony of anthropology and of the study of the environment, has arrived at the following conclusions: The admission of a free will is out of the

his complete free will, unless he is influenced by circumstances explicitly enumerated by the law, such as minority, congenital deaf-muteness, insanity, habitual drunkenness and, to a certain exte

y to the ignorance in which we find ourselves concerning the various motives and differe

majority of cases, we pretend that they are free phenomena, that is to say, that they are not determined necessarily by their causes. Hence the spiritualistic conception of the free will implies that every human being, in spite of the fact that their internal and external conditions are necessarily predetermined, should be able to come to a deliberate decision by the mere fiat of his or her free will, so that, even though the sum of all the causes demands a no, he or she can decide in favor of yes, and vice versa. Now, who is there that thinks, when deliberating some action, what are the causes that determine his choice? We can justly say that the greater part of our actions are determined by habit, that we make up our minds almost from custom, without considering the reason for or against. When we get up in the morning we go about our customary business quite automatically, we perform it as a function in which we do not think of a free will. We think of that only in unusual and grave cases, when we are called upon to make some special choice, the so-called voluntary deliberation, and then we weigh the reasons for or against; we ponder, we hesitate what to do. Well, even in such cases, so little depends on our will in the deliberations which we are about to take that if any one were to ask us one minute before we have decided what we are going to do, we sho

circumstances which determines the decision of our will at any given moment. The idea of a free will, however, is a denial of the law of cause and effect, both in the field of philosophy and theology. Saint Augustine and Martin Luther furnish irrefutable theological arguments for the denial of a free will. The omnipotence of God is irreco

ific thought, then it is evident that the admission of free thought is equivalent to an overthrow of this law, according to which every effect is proportionate to its cause. In that case, this law, which reigns supreme in the entire universe, would dissolve itself into naught at the feet of the human being, who would create effects with his free will not corresponding to their causes! It was all right to think so at a time when people had an entirely different idea of human beings

ble conceit. But Copernicus and Galilei came and demonstrated that the earth does not stand still, but that it is a grain of cosmic matter hurled into blue infinity and rotating since time unknown around its central body, the sun, which originated from an immense primitive n

r him, and to have had from time immemorial the forms which we see now, so that the fauna and flora living on our planet have always been what they are today. And Cicero, for instance, said that the heavens were placed around the earth and man in order that he might admire the beauty of the starry firmament at night, and that animals and plants were created for his use and pleasure. But in 1856 Charles Darwin came and, summarizing the results of studies that had been carried on for a c

t a disciple of Darwin gave the right answer, while propagating the Darwinian theory at the university of Jena. It was Haeckel, who concluded: "For my

r which the bourgeoisie fought, triumphed over the tyranny of the mediaeval dogma. And this condition, instead of being a glorious but transitory stage, is supposed to be the end of the development of humanity, which is henceforth condemned not to perfect itself any more by further changes. This is the illusion which serves as a fundamental argument against the positive school of criminology, since it is claimed that a penal justice enthroned on the foundations of Beccaria and Carrara would be a revolutionary heresy. It is also this illusion which serves as an argument against those who draw the logical consequences in regard to the socialistic future of humanity, for the science which takes its departure front the work of

relics of vengeance, hatred and punishment, which still survive in our day as living reminders of the barbarian stage. We still hear the "public vengeance" invoked against the criminal today, and justice has still for its symbol a sword, which it uses more than the scales. But a judge born of a woman cannot weigh the moral responsibility of one who has committed murder or theft. Not until the experimental and scientific method shall look for the causes of that dangerous malady, which we call crime, in the physical

chool went to the other extreme of solitary confinement, after the model of America, whence we adopted the systems of Philadelphia and Harrisburg in the first half of the nineteenth century. Isolation for the night is also our demand, but we object to continuous solitary confinement by day and night. Pasquale Mancini called solitary confinement "a living grave," in order to reassure the timorous, when in the name of the classic school, whose valiant champion he was, he demanded in 1876 the abolition of capital punishment. Yet in his swan song he re

pands, honest people remain unprotected, and those who are struck by the law do not improve, but become ever more antisocial through the repeated relapses. And so we have that contrast which I mentioned in the beginning of my lectur

IMINO