Penal Philosophy

, by Tarde, Gabriel; Beirne, Piers; Howell, Rapelje

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ISBN: 9780765807052 | 076580705X
Cover: Paperback
Copyright: 6/1/2001

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Supplemental Materials

Introduction to the Transaction Edition

Introduction to the English Version

xxi

Author's Foreword

xxxi

Editorial Preface

xxxiii

General Considerations

The criminality of savages; prejudices with regard to it. A minority of warlike, criminal tribes must have triumphed over a majority of peaceful tribes. But, moralization of the master by the subject. Also moralization of man by woman; example cannibalism

(6)

The zenith of the criminal law is bound up in the decline of criminality. Another cause of the existing crisis of the penal law; the crisis of morality. Attempts at moral reconstruction in every contemporary school. The modernization of morality. Necessity and difficulty of reforming penal legislation

(6)

Prejudice of thinking that free will is the essential foundation of moral responsibility. Kant and his noumenal morality; Fouillee and his ideal liberty. Free will and science

(10)

Analysis of the conception of duty and of right, of responsibility and of justice. Duty derived from finality simply. Consequences of this derivation

(6)

The duty of punishing. Criticism of the ideas of Fouillee and Guyau on this subject

(15)

The Positivist School

Origin of the positivist school; its existing representatives; its success and the progress it has made

(9)

Statement of its doctrines

(1)

Preliminary remarks

(1)

What is responsibility?

(5)

What is a criminal?

(9)

What is crime?

(6)

What is the remedy for wrongdoing? Criminal sociology

(8)

The Theory of Responsibility

Preliminary observations

(2)

Moral responsibility founded on personal identity and social similarity

(4)

The ideal of perfect responsibility. Conditions of the affections, sociable and unsociable; opposition to this point of view as between the desire to produce and the desire to consume, objective and subjective beliefs. The psychological conditions of personal identity are generally also those of social similarity

(4)

Comparison with the collective responsibility of a nation. Its numerous analogies to individual responsibility

(6)

What must be understood by social similarity

(1)

It has nothing to do with physical similarities nor even with every kind of physiological similarity. The moral sense. The teleological syllogism. Good and evil, their sociological significance. Social subjectivism. The duty of believing or not believing

(8)

Unanimous judgments of blame or of approbation; necessity of this conformism

107

(2)

Importance of defining the bounds of a society. This limit is always extended, and in several ways. Extradition treaties

109

(6)

What must be understood by personal identity

115

(1)

Identity, permanence of the individual. What is the individual? The individuality of the individual made clearer by the individuality of the organism and especially by that of the State. Logical and teleological co-ordination. The immortal soul and eternal cities; similar conceptions

116

(6)

A difference in spite of analogies. The identity of the ``myself'' much deeper than the identity of the State. The hypothesis of monads

122

(7)

The State is to the nation what the ``myself'' is to the brain. The ``force-ideas'' of Fouillee. Identity makes and unmakes itself; it has its degrees

129

(3)

Foundations of the limitation of criminal prosecutions; reforms which should be introduced therein

132

(1)

Civil responsibility

133

(1)

Our theory agrees with the historical one of responsibility

134

(1)

Family solidarity of primitive times; vendetta. Survivals of these past times, reprisals

135

(8)

Royal justice took for its model, not the domestic tribunals of a former era, but warlike proceedings; malefactors everywhere treated as enemies

143

(3)

Expiatory character of punishment; individual transition

146

(2)

Review and completion

148

(2)

The Theory of Irresponsibility

Preliminary remarks. Reply to Binet. Different causes of irresponsibility

150

(6)

Madness destroys assimilation and alienates at the same time. The moral sense

156

(5)

Internal duality of the insane: Felida and Rousseau. Responsibility or irresponsibility of great men

161

(5)

Duel within the insane. Psychology of the mystics. The various forms of madness

166

(6)

Epilepsy, intermittent madness. Analogous illnesses of the social body

172

(3)

Consolidated madness. Moral madness, state opposed to true madness. Heredity, in no way contrary to individual responsibility

175

(7)

Theory of responsibility by Dubuisson. Mistake of contrasting moral responsibility with social responsibility

182

(3)

Partial responsibility of the insane, Falret. The criminally mad and mad geniuses

185

(3)

Drunkenness. Homicide by reason of imprudence and homicide in a state of intoxication, madness due to alcohol. Should drunkenness be more of an extenuating circumstance as it is more inveterate? Contradiction between the determinists and their adversaries upon this point. Amnesia

188

(4)

Hypnotism and identity. Hypnosis and dreaming, two forms of the association of images, which imply the reality of the identical person. Voluntary decision is thus something other than a complicated suggestion

192

(9)

Old age. Age and sex

201

(1)

Moral conversion, salutary insanity. Slowness of great conversions. Necessity of surrounding suggestions. Great extent of moral transformations obtained by the founders of sects or religions. Effects of penal transportation. Remorse and repentance

202

(10)

Sovereignty

212

(3)

The Criminal

Preliminary remarks

215

(3)

The criminal type

218

(5)

The ``natural offense'' and native criminality are two different things. Impossibility of localizing this complex tendency, criminality, in the brain, before having localized its elements

223

(5)

The criminal is not a madman

228

(8)

The criminal is not a savage who has reappeared among us. Illusory foundations of the hypothesis of atavism: physical anomalies, tattooing, slang

236

(1)

The criminal is not a degenerate

236

(2)

Is the criminal an epileptic? Refutation of this theory taken literally. The example of Misdea analyzed. What may possibly be true at the basis of this idea. Essential periodicity of psychological phenomena

238

(13)

The criminal type is a professional type. Physiognomy and handwriting

251

(5)

Psychology and the criminal. The criminal is partly the result of his own crime and of criminal justice

256

(9)

The classification of criminals should be psychological above everything else. The rural criminal and the urban criminal

265

(3)

Rural brigandage in Corsica and in Sicily. Its characteristics. The rural police and the urban police

268

(9)

Continuation, the Sicilian Maffia

277

(7)

Urban brigandage. Criminality in Barcelona

284

(10)

Crime

Preliminary remarks. The biological and sociological interpretation of statistics. Existing statistics; the rudimentary eye

294

(3)

Part Played by Physical and Physiological Influences

The repetition and even the regular variation of statistical figures imply the non-existence and lack of the exercise of free will. From the social point of view, they show that man living in a society imitates far more than he innovates

297

(5)

The three factors of an offense, according to Ferri

302

(1)

Physical influences. Lacassagne's Criminal Calendar. Criminality and climate. Climate and mortality. Climate and the birth rate, according to statistics. Decreasing importance of the part played by physical influences corresponding to the progress made by a society. Their effect upon industry and art

303

(16)

Physiological influences. Race and sex

319

(3)

Preponderance of Social Causes

The tendency towards imitation, its force and its forms, its study by means of the phenomenon of crowds. How a suspicion soon becomes a conviction among a crowd. Genesis of popularity and unpopularity. The spirit of sect and the spirit of the group. The group, as well as the family, a primitive social factor; double origin of societies

322

(4)

The laws of imitation. Men imitate one another in proportion as they are in close contact. The superior is imitated by the inferior to a greater extent than the inferior by the superior. Propagation from the higher to the lower in every sort of fact: language, dogma, furniture, ideas, needs. The great fields of imitation; formerly aristocracies, today capitals. Similarity of the former and the latter

326

(5)

Application to criminality. Vices and crimes were formerly propagated from the nobles to the people. Examples: drunkenness, poisoning, murder by command. Deliberations of the Council of Ten. Counterfeit money. Pillage and theft

331

(7)

At the present time they are propagated from the great cities to the country. Women cut to pieces. The lovers' vitriol

338

(4)

The crime chart of France, drawn by Joly. Its divisions by watersheds, fields of criminality; Herault, Normandy, Eudes Rigaud

342

(6)

Criminality of great cities. Progress of homicide. Murder because of greed alone. Rape and indecent assaults upon adults and upon children. Abortion and infanticide. Alleged law of inversion between crimes against property and crimes against persons. Both increase in the same proportion in great cities. At the same time civilization improves mankind. How can this be reconcilable?

348

(14)

By means of another of the laws of imitation; the law of insertion, the alternate passing from fashion to custom, an irregular rhythm. Examples drawn from the history of languages, of religions, of industries. The same law applies to feelings of morality or immorality

362

(9)

The meeting of different currents of imitation; their struggle or their concurrence governed by the laws of social logic and expressed by means of statistics

371

(4)

Application of these ideas first of all to the influence of teaching upon criminality

375

(5)

In the second place, to the influence exercised by work and industry

380

(8)

In the third place, to the influence of poverty or wealth

388

(4)

And fourthly, to the influence of civilization in general

392

(4)

Analogies offered by the historical transformation of offenses with that of industries, of languages, of religions, of law, etc. At first internal changes in each sort of crime, which has nominally remained the same, general meaning of this transformation. Importance of this consideration in criticizing impartially the judges of the past. Irreversibility of the transformation pointed out above

396

(7)

In the second place, change in the accusation, crimes which have become torts, and have been legalized, or vice versa. Comparison with the variation in values. General meaning and irreversibility of these slow revolutions. Garofalo's theory of the ``natural offense''

403

(9)

In the third place, changes in criminal procedure. Same order as that of the succession of tools. Irreversible order

412

(4)

A summing up of the chapter. Characteristics which differentiate crime from the other social phenomena. Crime and war. Historical passing from the unilateral to the reciprocal

416

(7)

The Judgment

The place occupied by criminal procedure and penal justice in social science. Production and exchange of services, production and exchange of injuries

423

(6)

Historical evolution of criminal procedure, this corresponds to that of religious thought or irreligious thought. Proof by ordeals and the duel at law. Proof by torture. Proof by the jury. Proof by expert testimony. Propagation of each of these methods by procedure through imitation-fashion, and then consolidation by imitation-custom

429

(11)

Criticism of the jury system. The future of expert testimony. Necessity for a special school of criminal magistrates

440

(15)

Impossibility of requiring absolute conviction on the part of the criminal judge; possibility of approximately estimating the degree of his belief, and usefulness of this estimate though it is an imperfect one. The point of conviction, its variations and their causes

455

(6)

Criticism of some reforms proposed in the matter of definition of crimes

461

(1)

Premeditation in case of homicide. History. Holtzendorff's theory. The book of Alimena. A consideration of motives

462

(6)

Attempt. Why a likening of attempt to a crime which has been carried out is repugnant to common sense

468

(3)

Complicity

471

(2)

The Penalty

Efficaciousness of penalties. Proofs and examples

473

(10)

Historical summary

483

(1)

Changes in the penalty which universally lead to changes in the method of proof. Four phases. Gradual moderation of penalties

484

(5)

Price and penalties; a constant antithesis. The scale of offenses, and the scale of penalties. A new phase in political economy as well as in the penal law

489

(13)

Rational basis. Penal law based on utility or opinion

502

(6)

The penal law and the relief-board ought to be derived from principles not contradictory to each other

508

(3)

The various penitential systems. The ``manicomio criminale.'' The necessity of segregation of prisoners based on their social origin

511

(5)

Transportation, the cell, the Irish system. Comparison and conclusion

516

(12)

The Death Penalty

The problem of the death penalty. Fictitious enthusiasm raised by the idea of its abolition. Reaction against this

528

(4)

Theoretical and religious importance of the question. Effect of Christianity and influence of Darwinism. One of two things must be adopted; either abolish the death penalty in order to substitute something else for it or else make it milder in order to extend it

532

(6)

Is it desirable to extend it? Weakness of the ordinary argument against the death penalty; irreparability, possibility of legal mistakes, pretended inefficaciousness. Statistics on this subject; their improper interpretation

538

(7)

Arguments to the contrary. Escape of the condemned who have been pardoned. Another consideration. Inconsistency of the general public: while opposed to the legal death penalty they are favorable to the extra-judicial death penalty. Another contradiction: the progress of militarism, the increasing extermination of inferior races, and the gradual dispensing with the scaffold. Utilitarianism ought to take into account the suffering of unsatisfied public indignation

545

(6)

But utilitarianism would logically carry us much too far. Society should not be more egotistical, taken as a whole, than should the individual. Protestation of the feelings: increasing horror aroused by the death penalty, or by the existing methods of carrying it out. The doing away with war and the abolition of the scaffold. Robespierre and Napoleon. The death penalty is abolished in the very cases where the utilitarian doctrine most demanded its being retained: in political matters

551

(11)

Utility of an experiment to be tried for definitely solving the question. As a third method, radically change the manner of carrying out the death penalty. The ``Phaedo'' and the guillotine

562

(7)

Index

569

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Penal Philosophy

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