Law & Order

From Journal of Social Studies Vol. II, No. 1, Spring 1940

By Benjamin B. Ferencz

Criminal law and criminology have, for the past several years, been confronted with a problem that reaches the very foundations and basic philosophies underlying the study and treatment of social offenders. Simply, the controversy revolves about the question; "Shall the main concern underlying penal treatment be the matter of the offense committed, or the person offending?" Representing the extreme positions in both points of view,-- generally designated as Classical and Positive,-- the conflict between the legal profession and psychiatry has later emerged.

About the middle of the 18th century there began to arise a philosophical school, led by Rousseau and Bentham, which emphasized the rationality of man, hedonism, and the social contract theories. These philosophical principles drew attention to the great injustices and inequities that prevailed in the legal system. As a result, great protest was set up, which led to what has come to be known as the Classical School of criminology.

The rise of the Classical School is most closely associated with the Italian, Cesare Beccaria. His book "Crimes and Punishments," published in 1764 is usually considered the foundation-stone of the Classical doctrine of punishment. His words were motivated by a passion for human equality and liberty. His book was not a program of a contemplated new school of punishment, but was essentially a protest. A protest against obscurity and uncertainty of the law; against secret accusations and torture; against the abuse of power by the pardoning power, and against numerous minor abuses. He urged that legislators, not judges, should make the laws; that laws should be clear, so that each man would know what punishment to expect for each crime, regardless of status; that certainty and promptness rather than severity in punishment be made the deterrent factor, and he urged that punishments be made public.

Only part of Beccaria's ideas were adopted by Classical penology. The French Code of 1791 attempted to apply Beccaria's principle of equal punishment for the same crime. It adopted his suggestion that crime should be arranged on a scale, that to each crime the Italian or the Positivist School, and its most distinguished representatives were Lombroso, Ferri, and Garofalo.

Lombroso had been educated for medicine. As an army doctor he had used his leisure time by making a series of studies of the Italian soldier. He was struck by the fact that the "vicious" soldier was distinguished from the "honest" soldier by the extent to which the former was tattooed and the indecency of the design. Later, while working in Italian prisons, Lombroso was designated to make the post mortem examination of a famous criminal. On opening the skull, he found on the interior of the lower back part, a distinct depression which characteristic he knew was to be found in lower animals, especially rodents. This was a revelation to him: "I seemed to see, all of a sudden... the nature of the criminal,-- an atavistic being who represents in his person the ferocious instincts of primitive humanity and the inferior animals."

Lombroso's theories later underwent several changes, but at this early stage he considered the criminal a distinct type by birth. He said they had certain physical anomalies which showed that they were either a reversion to a savage type, or a degenerate of the epileptoid type. Criminality was thought to be inherited, and Lombroso claimed that the born criminal could not refrain from crime unless the environmental circumstances of his life were unusually favorable. Lombroso's conception of the physical criminal type was later definitely disproved by Charles Goring by an anthropological study of 3000 English convicts. A younger member of the Italian School was Enrico Ferri, who contributed an emphasis upon the social factors, and gathered together and placed in logical form the various factors which enter into the making of a criminal. These in Ferri's presentation are three; the physical factors, the anthropological, and the social factors. Garofalo, the third of the three great founders of the Italian School, stressed the study of the criminal nature, and of the circumstances under which a criminal lived. The criminal was considered, not as a free moral agent, but the product of his traits and circumstances.

Despite the vagaries which characterize the Positive School, the study of the criminal in the light of his individual characteristics played upon the environment, rather than a free moral agent who chooses to commit an act injurious to society, has greatly affected criminology. Further development of the Positive theory has led to Boner's view of the economic determination of crime, and to the view of the dynamic psychiatrists.

The Positive School would not hold the individual responsibility for crime, since they are determined by forces beyond his control. The old objects of punishment have been severely altered. Criminals are to be treated, not punished. Reformation is to be applied with discrimination to the various classes of criminals. Prevention of crime by discovering as early as possible those with characteristics likely to lead to delinquency, altering the external conditions which make for crime, and throwing around each person the influences which make for social behavior, is receiving primary emphasis. The shift from individual to social responsibility for crime has also resulted in the rise of Juvenile Courts, indeterminate sentences, probation, parole, education and recreation in prisons, and wider attempts at social control of crime.

Unfortunately the actual practice in the administration of the criminal law has not followed the systems outlined above. There are three conflicting tendencies in the law today. There is a tendency toward increasing severity. This is