Unification of Criminal Law after the Great Union – the 1936 Criminal Code 173
representatives of the Italian positivist school Cesare Lombroso13, Rafaelle
Garofalo14, Enrico Ferri15. The influence of the Italian Criminal Code, the most
recent Criminal Code adopted in the countries to which Romania was looking at,
adopted in October 1930, entered into force in July the following year.
Unlike the classical doctrine, according to which the individual, endowed with
free will, has exclusive moral and criminal responsibility and the criminal law has
to deal only with the repressive reaction, and not in a preventive way, the
positivist school investigates the criminal phenomena using the inductive or
positive method, based on observation and experimentation used in the natural
sciences. First viewed as a social and natural phenomenon and then as a legal
phenomenon, the offense is a product of an individual, and the individual, the
offender or the offender " is not free in its manifestations but is determined by
biological, social and cosmoteluric factors. Thus, the offender is determined to
commit the offense, his liability can not be based on moral guilt, but the necessity
of social defense"16.
The influence of positivism results in the emphasis placed on the personality of
the offender, both in the criminal process and in the way the punishment is
executed. According to Traian Pop, one of the jurists who participated in the
drafting, "attention was paid to the offender, who in a modern code should be on
the first level, not after the offense. The offense is not an abstract entity, but the
deed of a man with a complex genesis. The offense in the modern conception does
not concern itself and by itself, but only as the deed of a man who has been
dangerous to society. (...) The subjective criterion is more important, so besides the
nature and gravity of the crime, the personality of the offender is taken into
account: his criminal history, the mob, the degree of perversity, the moral decay,
the behavior after committing the offense"17.
13 Cesare Lombroso (1835-1909), a professor of legal medicine in Turin, considered the father of
modern criminology, author of L'Uomo delinquent, Criminal Anthropology and Recent Progress,
14 Baron R. Garofalo (1851 - 1934) career magistrate, President of the Chamber of Appeal of
Naples. In Criminology, he develops the theory of moral abnormality, distinguishes between natural
crimes and conventional crimes, postulates that punishment follows the crime that hurts the moral
sense of a community. He concludes that the typical murderer is a moral monster and introduces the
notion of danger to the offender.
15 Enrico Ferri, (1856-1929), in the paper "The New Horizons of Criminal Law" formulates the
multifactorial theory of the crime, concluding that competing factors of biological, psychological and
social nature determine the individual phenomenon of crime. He denies free will, so moral
responsibility, replaced in Ferri's view of social responsibility. With him the positivist theory of
criminal responsibility is born.
16 Mihaela Agheniei, Permanents of Criminal Law: General, Bucharest, The Universe Juridic,
2010, p. 9.
17 Traian Pop, Proiectul Codului Penal din 1922 şi Codul Penal Carol II, în „Analele Facultii de
Drept din Cluj”, vol. 1, nr. 8, 1939, p. 8.