Page:The Green Bag (1889–1914), Volume 24.pdf/567

 Reviews of Books THE PSEUDO-PROBLEM OF FREE WILL IN CRIMINOLOGY The Individualization of Punishment. By Ray mond Saleilles, Professor of Comparative Law in the University of Paris and in the College of Social Science. With an introduction by Gabriel Tarde. late magistrate in Picardy and Professor of Philos ophy on the College of France. Translated from the second French edition by Rachel Szold Jastrow, with an introduction by Roscoe Pound, Professor of Law in Harvard University. Modern Criminal Science Series, v. 4. Little, Brown & Co., Boston. Pp. xliv., 313+6 (index). ($4.50 net.) Criminal Responsibility and Social Restraint. By Ray Madding McConnell, Ph.D., instructor in social ethics. Harvard University, author of "The Duty of Altruism." Charles Scribner's Sons, New York. Pp. 339. ($1.75 net.)

IN THE work of Professor Saleilles, the fourth to appear in the Mod ern Criminal Science Series, less dis cussion is given to the concrete prob lems of individualization of punish ment than the title would suggest. This is because the writer occupies an inter mediate position between the earlier and more recent types of penologists. Most of his effort is expended in analy sis and criticism of the various schools. The book is animated by a spirit more critical than constructive. If its au thor could have frankly embraced the progressive position he would have been able to devote less time to gen eral considerations, and to write a treattise of greater practical helpfulness. But it must not be supposed that he is not conversant with the actual prob lems, nor free from ripe practical sug gestions. A second defect of the book is the writer's evident lack of acquaintance with developments in Germany. Von Liszt is the only German penologist who receives much attention. In the case of De Quiros, who wrote an earlier volume in the series, this fault was more

excusable, the author being a Spaniard writing under Latin influences; in the present case it is more serious in view of the effort to produce a treatise of cosmopolitan scope. The subjects of free will and respon sibility receive a disproportionate amount of attention. These topics ought not to be too prominent in a work on penology. They lead the reader too far afield from problems of leading importance alike from a scientific and from a practical standpoint. The rea son why the author is at such pains to develop his own views on the subject of responsiblity is because of his reluctance to accept the position of the advanced school. He is not satisfied with the notion of the personal responsibility of the criminal as providing a sound basis for a penal system in combina tion with the principle of social pro tection. He must, like Merkel for in stance, assume that prevailing ethical conceptions of value must be upheld by punishing infractions of the popular code of morals in accordance with a notion of social rather than personal responsibility. Subjective responsibility is not sufficient; responsibility in the objective or social sense "is a principle to be preserved at all cost" (p. 154). After he has spent many pages in ex posing the errors of the so-called classi cal penology with regard to free will and the objective aspect of crime, as "materiality," it is disappointing to find him defending an independent theory of free will built partly upon a founda tion of fiction, and urging that crime be treated objectively in a manner that retains some of the retributive spirit of the earlier school. This view ill