Enrico Ferri.

The Positive School of Criminology Three Lectures Given at the University of Naples, Italy on April 22, 23 and 24, 1901 online

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Online LibraryEnrico FerriThe Positive School of Criminology Three Lectures Given at the University of Naples, Italy on April 22, 23 and 24, 1901 → online text (page 5 of 6)
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for granted that my classification of five types is everywhere accepted.
These are the following: The _born criminal_ who has a congenital
predisposition for crime; the _insane criminal_ suffering from some
clinical form of mental alienation, and whom even our existing penal
code had to recognize; the _habitual criminal_, that is to say one who
has acquired the habit of crime mainly through the ineffective measures
employed by society for the prevention and repression of crime. A common
figure in our large industrial centers is that of the abandoned child
which has to go begging from its earliest youth in order to collect an
income for the enterprising boss or for its poor family, without an
opportunity to educate its moral sense in the filth of the streets. It
is punished for the first time by the law and sent to prison or to a
reformatory, where it is inevitably corrupted. Then, when such an
individual comes out of prison, he is stigmatized as a thief or forger,
watched by the police, and if he secures work in some shop, the owner is
indirectly induced to discharge him, so that he must inevitably fall
back upon crime.

Thus one acquires crime as a habit, a product of social rottenness, due
to the ineffective measures for the prevention and repression of crime.
There is furthermore the _occasional criminal_, who commits very
insignificant criminal acts, more because he is led astray by his
conditions of life than because the aggressive energy of a degenerate
personality impels him. If he is not made worse by a prison life, he may
find an opportunity to return to a normal life in society. Finally there
is the _passionate criminal,_ who, like the insane criminal, has
received attention from the positive school of criminology; which,
however, did not come to any definite conclusions regarding him, such as
may be gathered by means of the experimental method through study in
prisons, insane asylums, or in freedom. The relations between passion
and crime have so far been studied on a field in which no solution was
possible. For the classic school considers such a crime according to
the greater or smaller intensity and violence of passion and comes to
the conclusion that the degree of responsibility decreases to the extent
that the intensity of a passion increases, and vice versa. The problem
cannot be solved in this way. There are passions which may rise to the
highest degree of intensity without reducing the responsibility. For
instance, is one who murders from motives of revenge a passionate
criminal who must be excused?

The classic school of criminology says "No," and for my part I agree
with them. Francesco Carrara says: "There are blind passions, and others
which are reasonable. Blind passions deprive one of free will,
reasonable ones do not. Blind and excusable passions are fear, honor,
love, reasonable and inexcusable ones are hatred and revenge." But how
so? I have studied murderers who killed for revenge and who told me that
the desire for revenge took hold of them like a fever, so that they
"forgot even to eat." Hate and revenge can take possession of a man to
such an extent that he becomes blind with passion. The truth is that
passion must be considered not so far as its violence or quantity are
concerned, but rather as to its quality. We must distinguish between
social and anti-social passion, the one favoring the conditions of life
for the species and collectivity, the other antagonistic to the
development of the collectivity. In the first case, we have love,
injured honor, etc, which are passions normally useful to society, and
aberrations of which may be excused more or less according to individual
cases. On the other hand, we have inexcusable passions, because their
psychological tendency is to antagonize the development of society. They
are antisocial, and cannot be excused, and hate and revenge are among
them.

The positive school therefore admits that a passion is excusable, when
the moral sense of a man is normal, when his past record is clear, and
when his crime is due to a social passion, which makes it excusable.

We shall see tomorrow what remedies the positive school of criminology
proposes for each one of these categories of criminals, in distinction
from the measuring of doses of imprisonment advocated by the classic
school.

We have thus exhausted in a short and general review the subject of the
natural origin of criminality. - To sum up, crime is a social
phenomenon, due to the interaction of anthropological, telluric, and
social factors. This law brings about what I have called criminal
saturation, which means that every society has the criminality which it
deserves, and which produces by means of its geographical and social
conditions such quantities and qualities of crime as correspond to the
development of each collective human group.

Thus the old saying of Imetelet is confirmed: "There is an annual
balance of crime, which must be paid and settled with greater regularity
than the accounts of the national revenue." However, we positivists give
to this statement a less fatalistic interpretation, since we have
demonstrated that crime is not our immutable destiny, even though it is
a vain beginning to attempt to attenuate or eliminate crime by mere
schemes. The truth is that the balance of crime is determined by the
physical and social environment. But by changing the condition of the
social environment, which is most easily modified, the legislator may
alter the influence of the telluric environment and the organic and
psychic conditions of the population, control the greater portion of
crimes, and reduce them considerably. It is our firm conviction that a
truly civilized legislator can attenuate the plague of criminality, not
so much by means of the criminal code, as by means of remedies which are
latent in the remainder of the social life and of legislation. And the
experience of the most advanced countries confirms this by the
beneficent and preventive influence of criminal legislation resting on
efficacious social reforms.

We arrive, then, at this scientific conclusion: In the society of the
future, the necessity for penal justice will be reduced to the extent
that social justice grows intensively and extensively.


III.

In the preceding two lectures, I have given you a short review of the
new current in scientific thought, which studies the painful and
dangerous phenomena of criminality. We must now draw the logical
conclusions, in theory and practice, from the teachings of experimented
science, for the removal of the gangrenous plague of crime. Under the
influence of the positive methods of research, the old formula "Science
for science's sake" has given place to the new formula "Science for
life's sake." For it would be useless for the human mind to retreat into
the vault of philosophical concentration, if this intellectual mastery
did not produce as a counter-effect a beneficent wave of real
improvement in the destinies of the human race.

What, then, has the civilized world to offer in the way of remedies
against criminality? The classic school of criminology, being unable to
locate in the course of its scientific and historical mission the
natural causes of crime, as I have shown in the preceding lectures, was
not in a position to deal in a comprehensive and far-seeing manner with
this problem of the remedy against criminality. Some of the classic
criminologists, such as Bentham, Romagnosi, or Ellero, with a more
positive bent of mind than others, may have given a little of their
scientific activity to the analysis of this problem, namely the
prevention of crime. But Ellero himself had to admit that "the classic
school of criminology has written volumes concerning the death penalty
and torture, but has produced but a few pages on the prevention of
criminality." The historical mission of that school consisted in a
reduction of punishment. For being born on the eve of the French
revolution in the name of individualism and natural rights, it was a
protest against the barbarian penalties of the Middle Ages. And thus the
practical and glorious result of the classic school was a propaganda for
the abolition of the most brutal penalties of the Middle Ages, such as
the death penalty, torture, mutilation. We in our turn now follow up the
practical and scientific mission of the classic school of criminology
with a still more noble and fruitful mission by adding to the problem of
the _diminution of penalties_ the problem of the _diminution of crimes_.
It is worth more to humanity to reduce the number of crimes than to
reduce the dread sufferings of criminal punishments, although even this
is a noble work, after the evil plant of crime has been permitted to
grow in the realm of life. Take, for instance, the philanthropic
awakening due to the Congress of Geneva in the matter of the Red Cross
Society, for the care, treatment and cure of the wounded in war. However
noble and praiseworthy this mission may be, it would be far nobler and
better to prevent war than to heal the mutilated and wounded. If the
same zeal and persistence, which have been expended in the work of the
Red Cross Society, had been devoted to the realization of international
brotherhood, the weary road of human progress would show far better
results.

It is a noble mission to oppose the ferocious penalties of the Middle
Ages. But it is still nobler to forestall crime. The classic school of
criminology directed its attention merely to penalties, to repressive
measures after crime had been committed, with all its terrible moral
and material consequences. For in the classic school, the remedies
against criminality have not the social aim of improving human life, but
merely the illusory mission of retributive justice, meeting a moral
delinquency by a corresponding punishment in the shape of legal
sentences. This is the spirit which is still pervading criminal
legislation, although there is a sort of eclectic compromise between the
old and the new. The classic school of criminology has substituted for
the old absolutist conceptions of justice the eclectic theory that
absolute justice has the right to punish, but a right modified by the
interests of civilized life in present society. This is the point
discussed in Italy in the celebrated controversy between Pasquale
Stanislao Mancini and Terencio Mamiani, in 1847. This is in substance
the theory followed by the classic criminologists who revised the penal
code, which public opinion considers incapable of protecting society
against the dangers of crime. And we have but to look about us in the
realities of contemporaneous life in order to see that the criminal code
is far from being a remedy against crime, that it remedies nothing,
because either premeditation or passion in the person of the criminal
deprive the criminal law of all prohibitory power. The deceptive faith
in the efficacy of criminal law still lives in the public mind, because
every normal man feels that the thought of imprisonment would stand in
his way, if he contemplated tomorrow committing a theft, a rape, or a
murder. He feels the bridle of the social sense. And the criminal code
lends more strength to it and holds him back from criminal actions. But
even if the criminal code did not exist, he would not commit a crime, so
long as his physical and social environment would not urge him in that
direction. The criminal code serves only to isolate temporarily from
social intercourse those who are not considered worthy of it. And this
punishment prevents the criminal for a while from repeating his criminal
deed. But it is evident that the punishment is not imposed until after
the deed has been done. It is a remedy directed against effects, but it
does not touch the causes, the roots, of the evil.

We may say that in social life penalties have the same relation to crime
that medicine has to disease. After a disease has developed in an
organism, we have recourse to a physician. But he cannot do anything
else but to reach the effects in some single individual. On the other
hand, if the individual and the collectivity had obeyed the rules of
preventive hygiene, the disease would have been avoided 90 times in 100,
and would have appeared only in extreme and exceptional cases, where a
wound or an organic condition break through the laws of health. Lack of
providence on the part of man, which is due to insufficient expression
of the forces of the intellect and pervades so large a part of human
life, is certainly to blame for the fact that mankind chooses to use
belated remedies rather than to observe the laws of health, which demand
a greater methodical control of one's actions and more foresight,
because the remedy must be applied before the disease becomes apparent.
I say occasionally that human society acts in the matter of criminality
with the same lack of forethought that most people do in the matter of
tooth-ache. How many individuals do not suffer from tooth-ache,
especially in the great cities? And yet any one convinced of the
miraculous power of hygiene could easily clean his teeth every day and
prevent the microbes of tooth rot from thriving, thereby saving his
teeth from harm and pain. But it is tedious to do this every day. It
implies a control of one's self. It cannot be done without the
scientific conviction that induces men to acquire this habit. Most
people say: "Oh well, if that tooth rots, I'll bear the pain." But when
the night comes in which they cannot sleep for toothache, they will
swear at themselves for not having taken precautions and will run to the
dentist, who in most cases cannot help them any more.

The legislator should apply the rules of social hygiene in order to
reach the roots of criminality. But this would require that he should
bring his mind and will to bear daily on a legislative reform of
individual and social life, in the field of economics and morals as well
as in that of administration, politics, and intelligence. Instead of
that, the legislators permit the microbes of criminality to develop
their pathogenic powers in society. When crimes become manifest, the
legislator knows no other remedy but imprisonment in order to punish an
evil which he should have prevented. Unfortunately this scientific
conviction is not yet rooted and potent in the minds of the legislators
of most of the civilized countries, because they represent on an
average the backward scientific convictions of one or two previous
generations. The legislator who sits in parliament today was the
university student of 30 years ago. With a few very rare exceptions he
is supplied only with knowledge of outgrown scientific research. It is a
historical law that the work of the legislator is always behind the
science of his time. But nevertheless the scientist has the urgent duty
to spread the conviction that hygiene is worth as much on the field of
civilization as it is in medicine for the public health.

This is the fundamental conviction at which the positive school arrives:
That which has happened in medicine will happen in criminology. The
great value of practical hygiene, especially of social hygiene, which is
greater than that of individual hygiene, has been recognized after the
marvelous scientific discoveries concerning the origin and primitive
causes of the most dangerous diseases. So long as Pasteur and his
disciples had not given to the world their discovery of the pathogenic
microbes of all infectious diseases, such as typhoid fever, cholera,
diphtheria, tuberculosis, etc, more or less absurd remedies were
demanded of the science of medicine. I remember, for instance, that I
was compelled in my youth, during an epidemic of cholera, to stay in a
closed room, in which fumigation was carried on with substances
irritating the bronchial tubes and lungs without killing the cholera
microbes, as was proved later on. It was not until the real causes of
those infectious diseases were discovered, that efficient remedies could
be employed against them. An aqueduct given to a center of population
like Naples is a better protection against cholera than drugs, even
after the disease has taken root in the midst of the people of Naples.
This is the modern lesson which we wish to teach in the field of
criminology, a field which will always retain its repressive functions
as an exceptional and ultimate refuge, because we do not believe that we
shall succeed in eliminating all forms of criminality. Hence, if a crime
manifests itself, repression may be employed as one of the remedies of
criminology, but it should be the very last, not the exclusively
dominating one, as it is today.

It is this blind worship of punishment which is to blame for the
spectacle which we witness in every modern country, the spectacle that
the legislators neglect the rules of social hygiene and wake up with a
start when some form of crime becomes acute, and that they know of no
better remedy than an intensification of punishment meeted out by the
penal code. If one year of imprisonment is not enough, we'll make it ten
years, and if an aggravation of the ordinary penalty is not enough,
we'll pass a law of exception. It is always the blind trust in
punishment which remains the only remedy of the public conscience and
which always works to the detriment of morality and material welfare,
because it does not save the society of honest people and strikes
without curing those who have fallen a prey to guilt and crime.

The positive school of criminology, then, aside from the greater value
attributed to daily and systematic measures of social hygiene for the
prevention of criminality, comes to radically different conclusions also
in the matter of repressive justice. The classic school has for a
cardinal remedy against crime a preference for one kind of punishment,
namely imprisonment, and gives fixed and prescribed doses of this
remedy. It is the logical conclusion of retributive justice that it
travels by way of an illusory purification from moral guilt to the legal
responsibility of the criminal and thence on to a corresponding dose of
punishment, which has been previously prescribed and fixed.

We, on the other hand, hold that even the surviving form of repression,
which will be inevitable in spite of the application of the rules of
social prevention, should be widely different, on account of the
different conception which we have of crime and of penal justice.

In the majority of cases composed of minor crimes committed by people
belonging to the most numerous and least dangerous class of occasional
or passionate criminals, the only form of civil repression will be _the
compensation of the victim for his loss_. According to us, this should
he the only form of penalty imposed in the majority of minor crimes
committed by people who are not dangerous. In the present practice of
justice the compensation of the victim for his loss has become a
laughing stock, because this victim is systematically forgotten. The
whole attention of the classic school has been concentrated on the
juridical entity of the crime. The victim of the crime has been
forgotten, although this victim deserves philanthropic sympathy more
than the criminal who has done the harm. It is true, every, judge adds
to the sentence the formula that the criminal is responsible for the
injury and the costs to another authority. But the process of law puts
off this compensation to an indefinite time, and if the victim succeeds
a few years after the passing of the sentence in getting any action on
the matter, the criminal has in the meantime had a thousand legal
subterfuges to get away with his spoils. And thus the law itself becomes
the breeding ground of personal revenge, for Filangieri says aptly that
an innocent man grasps the dagger of the murderer, when the sword of
justice does not defend him.

Let us say at this point that the rigid application of compensation for
damages should never be displaced by imprisonment, because this would be
equivalent to sanctioning a real class distinction, for the rich can
laugh at damages, while the proletarian would have to make good a
sentence of 1000 lire by 100 days in prison, and in the meantime the
innocent family that tearfully waits for him outside, would be plunged
into desperate straits. Compensation for damages should never take
place in any other way than by means of the labor of the prisoner to an
extent satisfactory to the family of the injured. It has been attempted
to place this in an eclectic way on our law books, but this proposition
remains a dead letter and is not applied in Italy, because a stroke of
legislator's pen is not enough to change the fate of an entire nation.

These practical and efficient measures would be taken in the case of
lesser criminals. For the graver crimes committed by atavistic or
congenital criminals, of by persons inclining toward crime from acquired
habit or mental alienation, the positive school of criminology reserves
segregation for an indefinite time, for it is absurd to fix the time
beforehand in the case of a dangerous degenerate who has committed a
grave crime.

The question of indeterminate sentences has been recently discussed also
by Pessina, who combats it, of course, because the essence of the
classic school of criminology is retribution for a fault by means of
corresponding punishment. We might reply that no human judge can use any
other but the grossest scale by which to determine whether you are
responsible to the extent of the whole, one half, or one third. And
since there is no absolute or objective criterion by which the ratio of
crime to punishment can be determined, penal justice becomes a game of
chance. But we content ourselves by pointing out that segregation for an
indefinite time has so much truth in it, that even the most orthodox of
the classic school admit it, for instance in the case of criminals under
age. Now, if an indeterminate sentence is a violation of the principles
of the classic school, I cannot understand why it can be admitted in the
case of minors, but not in the case of adults. This is evidently an
expedient imposed by the exigencies of practical life, and only the
positive school of criminology can meet them by a logical
systematization. For the rest, indefinite segregation, such as we
propose for the most dangerous atavistic criminals, is a measure which
is already in use for ordinary lunatics as well us for criminal
lunatics. But it may be said that this is an administrative measure, not
a court sentence. Well, if any one is so fond of formulas as to make
this objection, he may get all the fun out of them that he likes. But it
is a fact that an insane person who has committed a crime is sent to a
building with iron bars on its gates such as a prison has. You may call
it an administrative building or a penal institute, the name is
unessential, for the substance alone counts. We maintain that congenital
or pathological criminals cannot be locked up for a definite term in any
institution, but should remain there until they are adapted for the
normal life of society.

This radical reform of principles carries with it a radical
transformation of details. Given an indeterminate segregation, there
should be organs of guardianship for persons so secluded, for instance
permanent committees for the periodical revision of sentences. In the
future, the criminal judge will always secure ample evidence to prove
whether a defendant is really guilty, for this is the fundamental point.
If it is certain that he has committed the crime, he should either be
excluded from social intercourse or sentenced to mate good the damage,
provided the criminal is not dangerous and the crime not grave. It is
absurd to sentence a man to five or six days imprisonment for some
insignificant misdemeanor. You lower him in the eyes of the public,
subject him to surveillance by the police, and send him to prison from
whence he will go out more corrupted than he was on entering it. It is
absurd to impose segregation in prison for small errors. Compensation
for injuries is enough. For the segregation of the graver criminals, the
management must be as scientific as it is now in insane asylums. It is
absurd to place an old pensioned soldier or a hardened bureaucrat at the
head of a penal institution. It is enough to visit one of those
compulsory human beehives and to see how a military discipline carries a
brutal hypocrisy into it. The management of such institutions must be
scientific, and the care of their inmates must be scientific, since a
grave crime is always a manifestation of the pathological condition of


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Online LibraryEnrico FerriThe Positive School of Criminology Three Lectures Given at the University of Naples, Italy on April 22, 23 and 24, 1901 → online text (page 5 of 6)