The Positive School of Criminology | Page 7

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 magistrates assume the existence of a free will,
while the legislator has decided that it shall not be assumed. Now, in
science as well as in legislation, we should follow a direct and logical
line, such as that of the classic school or the positive school of
criminology. But whoever thinks he has solved a problem when he
gives us a solution which is neither fish nor fowl, comes to the most

absurd and iniquitous conclusions. You see what happens every day. If
to-morrow some beastly and incomprehensible crime is committed, the
conscience of the judge is troubled by this question: Was the person
who committed this crime morally free to act or not? He may also
invoke the help of legislation, and he may take refuge in article 46,[A]
or in that compromise of article 47,[B] which admits a responsibility of
one-half or one-third, and he would decide on a penalty of one-half or
one-third.
All this may take place in the case of a grave and strange crime. And on
the other hand, go to the municipal courts or to the police courts, where
the magic lantern of justice throws its rays upon the nameless human
beings who have stolen a bundle of wood in a hard winter, or who have
slapped some one in the face during a brawl in a saloon. And if they
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 the
case of those poor nameless creatures, justice does not stop to consider
whether that microbe in the criminal world who steals under the
influence of hereditary or acquired degeneration, or in the delirium of
chronic hunger, is not worthy of more pity. It rather replies with a
mephistophelian grin when he begs for a humane understanding of his
case.
[A] Article 46: "A person is not subject to punishment, if at the moment
of his deed he was in a mental condition which deprived him of
consciousness or of the freedom of action. But if the judge considers it
dangerous to acquit the prisoner, he has to transfer him to the care of
the proper authorities, who will take the necessary precautions."
[B] Article 47: "If the mental condition mentioned in the foregoing
article was such as to considerably decrease the responsibility, without
eliminating it entirely, the penalty fixed upon the crime committed is
reduced according to the following rules:
"I. In place of penitentiary, imprisonment for not less than six years.

"II. In place of the permanent loss of civic rights, a loss of these rights
for a stipulated time.
"III. Whenever it is a question of a penalty of more than twelve years, it
is reduced to from three to ten years; if of more than six years, but not
more than twelve, it is reduced to from one to five years; in other cases,
the reduction is to be one-half of the ordinary penalty.
"IV. A fine is reduced to one-half.
"V. If the penalty would be a restriction of personal liberty, the judge
may order the prisoner to a workhouse, until the proper authorities
object, when the remainder of the sentence is carried out in the usual
manner."
It is true that there is now and then in those halls of justice, which
remain all too frequently closed to the living wave of public sentiment,
some more intelligent 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 its compromise between the
exactness of the classic and that of the positive school of criminology,
seek for some expedient which may restore him to equanimity.
In 1832, France introduced a penal innovation, which seemed to
represent an advance on the field of justice, but which is in reality a
denial of justice: The expedient of extenuating circumstances. The
judge does not ask for the advice of the court physician in the case of
some forlorn criminal, but condemns him without a word of rebuke to
society for its complicity. But in order to assuage his own conscience
he grants him extenuating circumstances, which seem a concession of
justice, but are, in reality, a denial of justice. For you either believe that
a man is responsible for his crime, and in that case the concession of
extenuating circumstances