Page:The Green Bag (1889–1914), Volume 24.pdf/568

 Reviews of Books accords with the proposal of individualization of punishment on the basis of personal or subjective responsibility, and in his desire to reconcile his posi tion with recent theories of individualization the author fails to pursue a path of logical directness. The book will be prized chiefly for its summaries of the positions of leading Italian and French criminologists, for its practical comments on the French and Italian criminal codes, and for its full discussion of the subjects, of legal judicial, and administrative individualization of punishment. The soundness of the author's practical conclusions does not seem to suffer to any great extent from the over-emphasis laid on the punitive aspect of penal remedies. The work is held in high regard in France, and must be studied as one of the important landmarks in recent lit erature. The excellence of the translation, which is the work of Mrs. Rachel Szold Jastrow of Madison, Wis., who is also the translator of Berolzheimer's "Die Kulturstufen der Rechts- und Wirthschaftsphilosophie," in the Modern Legal Philosophy Series, deserves notice. It shows a firm grasp of the technical idiom of scientific writing in English. The late Dr. McConnell, in his work on "Criminal Responsibility and Social Constraint," committed the same mis take as Prof. Saleilles of giving dispro portionate attention to the subjects of responsibility and free will. We are glad to note that instead of taking up the futile task of mediating between the free will and deterministic positions, he has no fear of the consequences of a deterministic theory. Why, then, should he devote one third of his book to consideration of freedom, and an other third to that of responsibility? It was said long ago that free will does

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not present an actual problem, but only a pseudo-problem. It is unfor tunate that so much attention should have been wasted by Dr. McConnell on an unnecessary discussion which cannot hope to invite the study that a more pregnant treatment of questions connected with social control would call forth. He says that determinism differs from fatalism "in that it maintains that a man's acts are the result of internal as well as external causes" (p. 226), surely not an idle distinction. He chooses to regard punishment not as an expiation for past offenses, but as a motive and guarantee of future good behavior. He further attributes para mount and controlling importance to the principle of social utility. One is led to expect, therefore, a complete abandonment of the principle of retri bution, and a support of the passionless employment of the penal substitutes of the newer penology for the purpose of safeguarding the social interest, with out the infliction of pain except in so far as it may serve a useful object. Dr. McConnell, however, though close to this position, never quite adopts it. He believes that there is some precious quality in punishment, as such, which requires its preservation as a funda mental measure. Social necessity, he says, calls for legal vengeance. The community needs a safety valve. While social utility sometimes calls for rehab ilitation, that in fact being the best means of social self-defense, the inflic tion of deterrent punishments may also be called for by the interest of the community. To a certain extent this may be true, but such inflictions are expedient only under appropriate con ditions ensuring their efficiency. The author pleads for a retributive procedure that ill accords with his deter