Criminal Sociology

by Enrico Ferri

[18] The actual state of the law in Europe, so far as regards the jury for common crimes and offences, is as follows:—England, Scotland, Ireland, and Switzerland have the jury for assizes and courts of first instance. France, Italy, Cisleithan Austria, Istria, Dalmatia, Rhenish Prussia, Alsace-Lorraine, Bavaria, Bohemia, Gallicia, Belgium, Roumania, Greece, Portugal, Russia, and Malta, have the criminal jury only. Spain had suspended it, but restored it in 1888. Prussia, Saxony, Baden, Wurtemberg, have the criminal jury and echevins (bodies of citizens sitting with the judges) for correctional and police cases. Denmark, Sweden, and Finland, have the echevins. Holland, Norway, Hungary, Slavonia, Poland, Servia, and Turkey, have neither juries nor _echevins__.

As for the other bio-sociological law, of single organs for single functions, it seems to me that if in England the jury and the magistracy have been developed side by side and interwoven, this is only a case of organic integration. But on the continent, as <p 196>the jury has been added artificially to the magistracy, this is on the other hand a genuine example of non-natural growth.

And if it be said that the jury, as an advance from the homogeneous to the heterogeneous, indicates a higher degree of social evolution, we must draw a distinction between differentiations which amount to evolution and those which, on the contrary, are symptoms of dissolution. Division of labour, physiological or social, is a true evolutionary differentiation; whilst modifications introduced by a disease in the animal organism, or by a revolt in the social organism, are but the beginning of a more or less extended dissolution.

Now the jury belongs to the domain of social pathology, for it is essentially contrary to the law of the specialisation of functions, according to which every organ which becomes more adapted to a given task is no longer adapted to any other. It is only in the lower organisms that the same tissue or organ can perform different functions, whilst in the vertebrates the stomach can only serve for digestion, the lungs for oxygenation, and so on. Similarly in primitive societies, each individual is soldier, hunter, tiller of the soil, &c., whilst with the progress of social evolution every man performs his special function, and becomes unfitted for other labours. In the jury we have a return to the primitive confusion of social functions, by giving to any chance comer, who may be an excellent labourer, or artist, a very delicate judicial function, for which he has no capacity to-day, and will have no available experience to-morrow. <p 197>

In modern societies, to tell the truth, there is another function assigned to all citizens, outside of their special capacity, and that is the electoral duty. But the cases are very different. The franchise does not demand a labour so difficult and delicate as critical judgment, and the reconstruction of the conditions of an act and of its author. It has no direct influence on the positive function of the person elected, but on the contrary it is a confession of the special incapacity of the elector to do what he intrusts to the capacity of the person elected. The franchise is but an elementary function of the assimilation of physiological elements in the social organism, which in the animal organism is performed by the aggregate of living cells, and in society by the aggregate of individuals, not being idiots or criminals, who possess the minimum of social energy.

Far different is the administration of criminal justice, a technical and very noble function, which has nothing in common with the elementary function of the franchise. I could not indeed agree with the assertion of Carrara, who thought it a contradiction to deny to the people any participation in the exercise of the judicial authority when they are allowed to participate in the exercise of legislative authority. In the first place, the people have but a very indirect share in the legislative function, and, even where the referendum exists, very useful as I believe it to be, the people have only a simple, almost negative function, to say Yes or No to a law which they have not made, and would have had no technical ability to make. Thus the argument of Carrara could <p 198>only lead to the popular election of judges, as of legislators, and to a control by the people of the administrative action of the judges when elected No doubt this would have theoretical advantages, though in my opinion it would raise practical difficulties, especially in nations which do not possess a very keen conscience and political activity, after enfeeblement by centuries of despotism, or of political and administrative tutelage and centralisation.

The jury, then, is a retrogressive institution, as shown by history and sociology, for it represents the medi<ae>val and instinctive phase of criminal justice. It has, indeed, a few advantages (there is always a certain profit in misfortune), especially when it operates on the final outcome of the classical theories—bringing to bear, for instance, an irresistible force against repeated theft, or murders committed at the instigation of others. And it has sometimes drawn attention to necessary penal reforms, after accepting certain conclusions of the positive school, such as the acquittal of criminals of passion, and political prisoners, or a greater severity towards habitual criminals.

But the only possible conclusion from the foregoing criticisms is that the jury should be abolished for the trial of common crimes, *after the introduction of reforms which would ensure the capacity and independence of the judges.

Meanwhile, since it is much easier to establish a new social institution than to abolish one, it is worth while to indicate the principal and most urgent reforms which should be made in the jury system, so <p 199>as to eliminate its more serious and frequent disadvantages.

The theoretical distinction of the classical school between ordinary and political crimes is not very precise, for the so- called political crimes are either not crimes (as when they are confined to the manifestation of an idea), or they are common crimes which spring from a lofty and social passion in individuals, who have the characteristics of the criminal by passion, or, in other words,—are but quasi-criminals; or else they are common crimes committed by ordinary malefactors, under the pretext of a popular idea. Instead of distinguishing crimes, I think we ought to distinguish between ordinary and political criminals, according to their determining motives, and the social bearings and historical moment of their acts. At the same time, whilst our criminal laws retain this distinction, I think it is useful to keep the jury for the trial of political crimes and offences, and for those connected with the press and with society as a whole; for if in these cases the jury might yield to the influence of class interests and prejudices (as for instance in the trial of actions arising out of the conflict of capital and labour), the danger will still be less than it would be with judges alone, who are not sufficiently independent of the executive, which in its turn is but the secular arm of the dominant class, and which therefore combines the interests and prejudices of the political order with those of the economic and moral order which dominate the jury.