The Positive School of Criminology | Page 6

became
accepted by general consent, as it is today. The positive school of
criminology was born in 1878, and although it does not stand for a

mere reform of the 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