The Positive School of Criminology | Page 6

methods of criminal justice, but for a complete and fundamental transformation of criminal justice itself, it has already gone quite a distance and made considerable conquests which begin to show in our country. It is a fact that the penal code now in force in this country represents a compromise, so far as the theory of personal responsibility is concerned, between the old theory of free will and the conclusions of the positive school which denies this free will.
You can find an illustration of this in the eloquent contortions of phantastic logic in the essays on the criminal code written by a great advocate of the classic school of criminology, Mario Pagano, this admirable type of a scientist and patriot, who does not lock himself up in the quiet egoism of his study, but feels the ideal of his time stirring within him and gives up his life to it. He has written three lines of a simple nudity that reveals 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 will. However, the Italian judge has continued to base the exercise of penal justice on the supposed existence of the free will, and pretends not to know that the number of scientists denying the free will is growing. Now, how is it possible that so terrible an office as that of sentencing criminals retains its stability or vacillates, according to whether the first who denies the existence of a free will deprives this function of its foundation?
Truly, it is said that this question has been too difficult for the new Italian penal code. And, for this reason, it was thought best to base the responsibility for a crime on the idea that a man is guilty simply for the reason that he wanted to commit the crime; and that he is not responsible if 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 kind. We have heard it said in such cases that the result may not have been intended, but the action bringing it about was. If a hunter shoots through a hedge and kills or wounds a person, he did not intend to kill, and yet he is held responsible because his first act, the shooting, was voluntary.
That statement applies to involuntary crimes, which are committed by some positive act. But what about involuntary crimes of omission? In a railway station, where the movements of trains represent the daily whirl of traffic in men, things, and ideas, every switch is a delicate instrument which may cause a derailment. The railway management places a switchman on duty at this delicate post. But in a moment of fatigue, or because he had to work inhumanly long hours of work, which exhausted all his nervous elasticity, or for other reasons, the switchman forgets to set the switch and causes a railroad accident, in which people are killed and wounded. Can it be said that he intended the first act? Assuredly not, for he did not intend anything and did not do anything. The hunter who fires a shot has at least had the intention of shooting. But the switchman did not want to forget (for in 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 magistrates assume the existence of a