Van Hamel, G. A.

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Farewell Message to the Intenational Union of Criminal Law

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Journal of Criminal Law and CriminologyVolume 5 | Issue 3 Article 21914Farewell Message to the Intenational Union ofCriminal LawG. A. Van HamelFollow this and additional works at: https://scholarlycommons.law.northwestern.edu/jclcPart of the Criminal Law Commons, Criminology Commons, and the Criminology and CriminalJustice CommonsThis Article is brought to you for free and open access by Northwestern University School of Law Scholarly Commons. It has been accepted forinclusion in Journal of Criminal Law and Criminology by an authorized editor of Northwestern University School of Law Scholarly Commons.Recommended CitationG. A. Van Hamel, Farewell Message to the Intenational Union of Criminal Law, 5 J. Am. Inst. Crim. L. & Criminology 325 (May 1914to March 1915)FAREWELL MESSAGE TO THE INTERNATIONAL UNION OFCRIMINAL LAW.'By G. A. VAw HAEL.The time at my disposal has not sufficed for preparing a contribu-tion suitable for this Memorial volume. But I should like to add, tothe valuable essays of the other contributors, at least a brief messageof reminiscence and of farewell.It is a message of reminiscence; for I have been with our Unionthroughout the brilliant period of its building up and have had myshare therein.It is a message of farewell; for now, at the age of seventy, underthe law of my country, I have been retired from my professorate, andthe limitations of human life bid me to expect before long to say fare-well to all activities.My reminiscence begins with my colleagues PRiNS and VON LIsZTand their exchange of ideas with me, in 1889, upon the possibilities ofopening new paths for the international advancement of science, legis-lation, and practice, in the field of Criminal Law. In the spring ofthat year, Von Liszt and myself, strolling in the Siebengebirge moun-iain paths one fine Sunday morning, formed the resolution to foundand build an international union dominated by a new spirit. As wesaw the then situation, in all countries alike was felt the need of ren-ovation and re-inspiration in the doctrines of criminal law, and ahearty response from all quarters would greet a summons to sucha task. ly own acquaintance with Von Liszt had begun some timebefore then. A few years after entering my professorate, I had prom-ised to deliver a paper at the International Prison Congress in Rome,in 1883, on the subject of "The Limits of Judicial Discretion in De-termining Sentences." As I proceeded to develop my theme, I foundthat the question of judicial discretion in sentences was overshadowedby the larger question of the nature of the sentence itself-the funda-mental purpose of penalties. Judicial discretion is merely the appli-'In the volume published to celebrate the 25th anniversary of the "Inter-national Union of Criminal Law" (reviewed at p. 307 in the July number ofthe JouRNAL) is printed a farewell message ("Zur Erinnerung und zumAbschied") by the distinguished scholar Van Hamel, emeritus professor ofcriminal law in the University of Amsterdam, member of the Senate, and one ofthe three founders of the Union. As a retrospect and a forecast, it has aworld-wide interest. The translation is by Associate Editor Wigmore of thisJOURNAL-ED.G. A. VAN HAMELcation to specific cases of the punishment appointed by law. To laydown principles for the former requires first a conscious settlement ofone's point of view as to the meaning of penal repression in general.Without a fixed principle to start with, how can one understand thesignificance of judicial discretion and its proper limits?It so happened that I had undertaken this particular subject formy paper because the new Dutch Criminal Code, which went intoeffect about that time, had taken away all limitations on judicial dis-cretion for the minimum penalties and had to that extent sanctionedentire freedom of judgment. And so, in preparing my paper, I foundmyself obliged to systematize my views on the purpose of punishmentin general.In the course of this task I was profoundly impressed by themasterly essay of Von Liszt (on the Purpose of Punishment), whichhad appeared in the third volume of his Journal of Criminal Law. Ifound myself closely affiliated, in doctrinal inclinations, to this fellow-scientist (then at the University of Marburg), and accordingly wroteto him, proposing a meeting at some early opportunity. This meet-ing took place not long afterwards; and out of it grew a lastingfriendship.Meantime Adolph Prins, in the faculty at Brussels, had pub-lished his volume on "Crime and Its Repression." In this powerfulwork, the use of State force in the repression of crime was examined ina spirit of practical realism; the necessity was emphasized of treatingthe criminal law as a struggle against criminality; and the conse-quential doctrine was laid down that we must not stop at symptoms,but must seek to reach causes, precisely as we do with disease, pov-erty, and other social conditions. Following out these ideas, thetreatise of Prins set forth scientific need of tracing out the motives forcrime, not merely with a view to doing justice in court, but with aview to developing a science. From the point of view of social philos:ophy, the thorough study of the general causes of criminality as asocial phenomenon would in turn redound to the benefit of the admin-istration of justice.Prins' work pointed out the distinction between those causes ofcrime which lay in the man himself and those which germinated inhis environment and exercised a fateful influence, not merely on spe-cific conduct, but on the whole character of the individual and evenon a criminal group. About this time, moreover, Lombroso's school,in Italy, was developing its positivistic doctrine with its emphasis onMESSAGE TO THE INTERNATIONAL UNIONanthropological causes; while in France the social-psychologicalschool, led by Laccassagne and Tarde, was making its advances.And so, in all directions could be seen an active revival of thought,-a general sense of the need for new knowledge and new achievement,and an effort to satisfy this need. Bench and bar-leaders in prac-tical application, but weaker brethren ever in science-needed to beshown this new trend of things, needed to realize that criminal lawmust be divested of its dogmatic and purely legal character and in-fused with a spirit of realism in its principles and aims.This was the contrast to be emphasized-not realism versus ideal-ism, but realism versus dogmatism. The movement did not signifythe abandonment of our ideals; for the ideal, in human affairs, isinseparable from the actual. But it did declare hostilities against theexisting dogmatic attitude, against its inherent and dangerous tend-ency to lose in legalistic pettiness and dialectic technicality the scienceof actual life and to end in futility.On such ambitious and inspiring possibilities ran the- thoughtsof Von Liszt and myself as we took our walks in the secluded valleysof the Siebengebirge mountains. Shortly thereafter, all three of thefounders of the Union met and laid out the plans for its organizationand its program of work.And so the memories of that high emprise come vividly before meas I take my leave. But one can not say Farewell without casting aglance at the Present, and at the Future, too. For the Past finds inthe Present the bookkeeping of its achievements; and only by lookinginto the Future can we decide what direction to take in the Present.That the science of criminal law has lost and is steadily losingmany of its dogmatic features-this much seems to me indisputable.In the field of the general doctrines of attempt, complicity and re-sponsibility the emphasis is more and more on the valuation of thesubjective element, and less and less on the objective element. Thisis the true realism, and here the influence of the new thinking is in-evitable. The objective element in these aspects of criminal conduct isa merely incidental phenomenon, not an essential quality; and whiledogmatism is satisfied to deal with appearances, realism insists ondealing with the essential.The same tendency shows itself, in the theory of penal repressionand its methods, in the form of the multiplication and due adjust-ment of those methods. Pardon, suspended sentence, probation andthe like-all these modern expedients are nothing more nor less than327G. A. VAN HAMELnot punishing whenever without actual punishment its purpose maybe attained. They represent-the sacrifice of old dogmatic traditionwith its axioms about retaliation-a sacrifice which has already beenmade in many systems of law and sooner or later will be made in theothers.In the field of juvenile criminality, the dogma of criminal capacityhas already been turned out of court in some countries. At the veryfirst annual meeting of the I. K. V. it was repudiated. If it still per-sists in numerous countries, it is only as an anachronism, which isexplainable easily enough on principles of human nature, but onthose same principles is bound to be overtaken by the summons to sur-render that rapidly draws nearer. Here, too, we see realism triumph-ant-an acknowledgement of the truth that the sound principles ofeducation find only a false safety in laws based on fantastic arbitrarydistinctions.In the doctrine of criminal responsibility, realism has abolishedthe fixed boundary line between normal and irresponsible persons. Itemphasizes the treatment of defective persons as a special problem,which requires patience for its solution. And in this field the modernontroversy over terminology-whether we shall regard the measuresas aiming at punishment or at social protection-seems to me only toobstruct and delay the solution; here the anti-dogmatists may well beasked to make a sacrifice to the dogmatists; I recommend them toadmit that names do not matter much and to consent without scrupleto the retention of the term "punishment."'In the matter of the judge's power over penalties, and his freedomfrom fixed rules predetermined in the code for all varieties of penal-ties and circumstances, the new doctrine tends steadily to enlarge hispowers. A notable example of this is the apparently universal de-mand for special juvenile courts. But this single instance must not re-main the only one; there is in principle no such radical difference be-tween juveniles and adults that the application of penalties shoulddistinguish- the two classes radically. The real place of importancefor the development of the criminal law in anti-dogmatic directionslies in the judge's function. For the advancement of the new ideasit is far more important what the judge thinks than what the legisla-tor thinks. England can teach us that; there is no developed scienceof criminal law in England; but they may well be proud that theypossess a judiciary who are ever advancing, ever disposed to regard1"Straf" does duty in German both for "punishment" and "penalty"; so thatthe word is not quite as harsh as our "punishment."--TRANSL.MESSAGE TO THE INTERNATIONAL UNIONthe subject realistically-a judiciary esteemed and trusted throughoutthe nation.In that direction points the future. On the cultivation of a com-petent judiciary every country must rely for the future developmentof an increasingly realistic criminal law.Criminal etiology-research into the causes of criminality-has,to be sure, in its achievements fallen far short of the expectations ofa quarter of a century ago. This much we must concede. But whyshould we doubt of acquiring better knowledge, as the future unfolds?Truth can not be discovered instantly. It needs its centuries. Thatneed not discourage us. Let us not be deterred, by the demand that weknow the whole, from at least knowing what is attainable; and theattainable, in my opinion, lies (as I have already said) in the improve-ment of penal methods, and this in turn lies in the hands of thejudge.And so, my farewell counsel is, first and foremost, Develop andimprove the judge!

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Farewell Message to the Intenational Union of Criminal Law

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