THE data of criminal anthropology and statistics, and the positive
theory of responsibility which flows from them, although they have
been systematised only by the positive school, are nevertheless
too constantly in evidence not to have made their way into courts
and parliaments.
I have already spoken of penal jurisprudence in its relations
with criminal sociology, and may now cite a few examples of the
more or less direct and avowed influence of the new data on penal
legislation.
The legislators of to-day, vaguely impressed by statistical
and biological, ethnographical and anthropological data, and still
imbued with the old prejudice of social and political
artificiality, were at first hurried into a regular mania for
legislation, under which every newly observed social phenomenon
seemed to demand a special law, regulation, or article in the
penal code. Then, as Spencer has said in one of his most
brilliant essays, the citizen finds himself in an inextricable
network of laws, decrees, regulations and codes, which surround
him, support him, fetter and bind him, even before his birth and
after his death. For
those whom M. Bordier calls
the gardeners and trussmakers of society, forgetting the natural
character of social phenomena, picture society as so much paste,
to which the cook may give any form he pleases, whether pie-crust,
dumpling, or tart.
Hence we see on all sides, side by side with dogma in the
classical sciences of law, economy, and politics, empiricism in
the laws themselves. And that is why the practical defects and
constant impotence of repression in penal justice are the most
eloquent arguments of the experimental school, which extends and
strengthens its own theoretical inductions by the practical
reforms which it suggests.
A first example of the influence more directly exercised by
the new ideas in penal legislation is furnished by the proposal
already realised in the penal laws of Holland, Italy, &c., of two
parallel systems of punishment by detention—one for the graver
and more dangerous crimes, and the other, "simple detention," or
custodia honesta ("as a first-class misdemeanant"), for
contraventions, involuntary offences, and crimes not inspired by
the baser passions.
Similarly, the enumeration contained in certain codes, as in
Spain, and in the old Mancini draft of a penal code in Italy, of
the main aggravating and extenuating circumstances common to all
crimes and offences, such as the antecedents of the accused,
venial or inexcusable passion, repentance and confession of a
crime, extent of injury or the like, is only an elementary and
empiric form of the biological and psychological classification of
criminals.
Thus also the foundation of asylums for the detention of
lunatic criminals, in spite of their being acquitted of moral
responsibility; the more and more vigorous, but often too
empirical measures against the progressive increase of recidivism;
the proposed repressive measures as alternatives to short terms of
detention; the reaction against the exaggerations of cellular
confinement, which I regard as one of the aberrations of the
nineteenth century, are all manifest proofs of the more or less
avowed and logical influence of the data of criminal biology and
sociology on contemporary penal legislation.
These practical reforms, which, when grafted on the old trunk
of the classical theories of crime and punishment, are mere
arbitrary and misplaced expedients, really represent, when they
are logically co-ordinated and completed, the new system of social
defence againt crime, which is based on the scientific data
and inductions of the positive school, and which it is therefore
necessary for us to trace out from its foundations.
