Paralegal Professional 5th Edition

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Paralegal Professional 5th Edition Goldman Solutions Manual

CHAPTER 2 – Ethics and Professional Responsibility

Teacher to Teacher Notes

This chapter will discuss these ideas: what is legal and ethical, within the confines of the legal
profession. The laws and the rules which define the conduct of the lawyer and the paralegal; how
they interact as a team delivering legal services, their obligations to each other, their clients and
the court. The moral decisions, that is, how the student individually decides to abide by the legal
and ethical requirements are up to him or her.

Pre-Chapter Warm-up
What’s Legal, Ethical and Moral? – Use an example students can relate to
1. Legal – the speed limit
**Usually defined by statute or case law
2. Ethical – an unwritten understanding with the state police – no traffic stops, moving violation
so long as don’t exceed the speed limit by 10 mph
**Usually an agreement among members of a particular group that defines how they will
conduct themselves
3. Moral – what you decide to do - 55mph or 64mph.
** Your own sense of right and wrong

Learning Objectives
1. Explain how the practice of law is regulated.
2. Define and ethics and explain the difference between the attorney’s rules of ethics and the
paralegal’s rules of ethics
3. Explain the lawyer’s ethical duty to supervise.
4. Discuss the ethical obligation of competence.
5. Explain the concept of confidentiality of client communications and the attorney-client
privilege.
6. Discuss the concept of conflict of interest in the legal profession
7. Describe the duty of candor to the court and other counsel and the ethical duty of fairness
8. Analyze a situation to determine if it involves the unauthorized practice of law.

Paralegals at Work
As your class discussion shifts from the broad discussion in the Pre Chapter Warm-up of what is
legal, ethical and moral, ask the students about Kelsey’s professional situation and her behavior.
11. What’s wrong?
Answer: Working for both sides, giving advice, contacting the clients or carrier directly,
discussing with a colleague
12. What’s right?
Answer: Seeking advice although maybe from the wrong person
3. What makes you uncomfortable?
Answer: Often those things that make us feel uncomfortable are ethics violations

Introduction to Ethics and Professional Responsibility

•Every profession develops a set of guidelines for those in the profession to follow.

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•For lawyers, ethical conduct is proscribed by the ABA Model Rules of Professional Conduct,
which most states have adopted.
•Ethical guidelines provide a high degree of consistency for the legal profession across the
country.
•For paralegals membership in one of the national paralegal associations, such as NALA
(National Association of Legal Assistants) or NFPA (National Federation of Paralegal
Associations) require the paralegal to conduct him/herself in accordance with these guidelines.
•These codes typically set for the minimum in ethical behavior

Chapter Outline
I.Regulation of the Practice of Law
Learning Objective 1 – explain how the practice of law is regulated
A. The practice of law is regulated by state government and court rule in an attempt to
protect the public from incompetent and unscrupulous practitioners
1. License requirements from state statutory provisions – typically education,
character and examination requirements
2. Requirements to maintain license (continuing legal education)
3. Code of Professional Conduct adopted by state
a. Penalty for violation can be a fine, suspension for a period of time or
disbarment.
b. Where the violation also represents a crime (e.g. unauthorized practice of law)
in the state the penalty may include additional fines and imprisonment

A. The Paralegal and Licensing

1. No state licensing requirements
a. Some states have statutes that carve out areas that paralegals may act
2. No unified code of ethics
3. Privately monitored within professional associations
4. Fine line between lawful activity of the paralegal and the unauthorized practice
of law

II. Ethical Duties and Obligations

• Competency
• Confidentiality
• Conflicts of Interest
• Candor
• Fairness to Opposing Party and Counsel
• Duty to supervise
1
2III. Ethical Guidelines and Rules
Learning Objective 2 - Define and ethics and explain the difference between the attorney’s
rules of ethics and the paralegal’s rules of ethics
lLawyers – single set of rules adopted by the state in which they practice usually based upon the
American Bar Association’s Model Code of Professional Responsibility
lParalegal – no single source of ethical rules. Paralegals must conduct themselves in accordance
with the rules applicable to attorneys. Thus, since the rules that govern the attorney will also
govern the paralegal’s conduct it is important for the paralegal to know her state’s Rules of
Professional Conduct.

A. ABA Model Guidelines for Utilization of Paralegal Services

1. Not mandatory that these guidelines be followed
2. Guidelines suggest how attorneys interact with, train, supervise, delegate and
compensate paralegals
3. A paralegal is the agent of the attorney and owes the common law duties of agent
to principal also known as the fiduciary duty
a. Exercise reasonable care, skill and diligence
b. Duty of loyalty – all benefits must be for the employer/principal not self
4. The principal/agent rule is extended to the client – the attorney is the agent of the
client so the paralegal is a sub-agent to the client and owes all the same duties to
the client

B. Uniformity of Paralegal Ethics

1. No unified code of ethics governs paralegals
2. Professional associations have attempted to fill the gap but each has its own code
of ethics

C. Ethics Codes of Paralegal Associations

1. NFPA – Paralegal association and individual paralegals rules and guidelines
a. Consequence for breach – loss of membership in association
b. Note similarity to ABA Code
2. NALA – association for legal assistants which provides for continuing education
and certification testing, CLA is a designation recognized by the ABA
a. Consequence for breach – loss of certification and membership in association
b. Note similarity to ABA Code

D.Duty to Supervise
DI.Learning Objective 3 - Explain the lawyer’s ethical duty to supervise.
1. Partners, lawyers with managerial authority in the firm have a duty to ensure
others conduct complies with the ethical code
2. Ethical breaches are the responsibility of the supervising attorney under both the
legal principals of the law of agency and the ethical code

E. Sanctions
1. Sanctions for failure to properly supervise can come from the court (damages for
malpractice or breach of contract) and from the attorney disciplinary board
(suspension of license or disbarment)
2. Each person working for or supervised by the attorney is in fact the agent of the
attorney.
3. Under fundamentals of agency law, the agent and the principal—the attorney—
have a fiduciary relationship to each other. The agent must obey the reasonable
instructions of the principal and the principal is presumed to know everything the
agent learns in the ordinary course of working for the attorney on the case.
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known that the life of the convict, miserable as it is, with its dull routine
and perpetual surveillance, is yet easier, less laborious, and far more
healthy than that to which thousands of honest working-men are
condemned throughout Great Britain.” 23

[Contents]

VI.

C D. W .

The author of the brochure, “The Relation of Economic Conditions to the

Causes of Crime”, begins by declaring that there are two kinds [194]of
criminals; persons who have become such from their psycho-physical
constitution, and others who have become such from circumstances.

“I believe the criminal is an undeveloped man in all his elements,

whether you think of him as a worker or as a moral and intellectual
being. His faculties are all undeveloped, not only those which enable him
to labor honestly and faithfully for the care and support of himself and
his family, but also all his moral and intellectual faculties. He is not a
fallen being: he is an undeveloped individual.” 24

The author then continues by saying that since there is a relation more or
less close between all the important social questions and the labor
question, it is necessary to take that up also in studying the criminal
question.

We know that there are three great systems of labor: the system resting
upon slavery, the feudal system, and the system now in force, i.e. that of
free labor. In the first two, which intrinsically do not differ much, crime
had a totally different character from what it has under the last. Under
the feudal system the peasants lived in the most deplorable condition,
without hope of betterment. In many countries conditions were so bad
that great bands of thieves and brigands overran them. During the reign
of Henry VIII, which lasted 38 years, 72,000 criminals were executed.
“Pauperism, therefore, did not attract legislation, and crime, the offspring
of pauperism and idleness, was brutally treated; and these conditions,
betokening an unsound social condition, existed until progress made
pauperism, and crime as well, the disgrace of the nation, and it was then
that pauperism began to be recognized as a condition that might be
relieved through legislation.” 25

In the end the feudal system was overthrown and that of free labor, the
present system, became general. Since then the differences between
poverty and wealth have appeared more distinctly.

“Carry industry to a country not given to mechanical production or to

any systematic form of labor, employ three-fourths of its inhabitants,
give them a taste of education, of civilization, make them feel the power
of moral forces even in a slight degree, and the misery of the other fourth
can be gauged by the progress of the three-fourths, and a class of paupers
and resultant criminals will be observed. We have in our own day a most
emphatic illustration of this in the emancipation of slaves in this country
(America). Under the old system the negro slave was physically
comfortable, as a rule. He was [195]cared for, he was nursed in sickness,
fed and clothed, and in old age his physical comforts were continued. He
had no responsibility, and, indeed, exercised no skill beyond what was
taught him. To eat, to work and to sleep were all that was expected of
him, and, unless he had a cruel master, he lived the life that belongs to
the animal. Since his emancipation and his endowment with citizenship
he has been obliged to support himself and his family, and to contend
with all obstacles belonging to a person in a state of freedom. Under the
system of villeinage in the old country it could not be said that there
were any general poor, for the master and the lord of the manor took care
of the laborers their whole lives; and in our Southern towns, during
slavery, this was true, so that in the South there were few, if any,
poorhouses, and few, if any, inmates of penal institutions. The South
today knows what pauperism is, as England learned when the system of
villeinage departed. Southern prisons have become active, and all that
belongs to the defective, the dependent, and the delinquent classes has
come to be familiar to the South.…” “But so far as the modern industrial
order superinduces idleness or unemployment, in so far it must be
considered as having a direct relation to the causes of crime.” 26

After having tried to show, by the aid of some historical examples, that
the conditions in the system which preceded ours were of a nature much
more serious than those of our own day, he continues as follows:

“In the study of economic conditions, and whatever bearing they may
have upon crime, I can do no better than to repeat, as a general idea, a
statement made some years ago by Mr. Ira Steward, of Massachusetts,
one of the leading labor reformers in that state in his day. He said:
‘Starting in the labor problem from whatever point we may, we reach, as
the ultimate cause of our industrial, social, moral, and material
difficulties, the terrible fact of poverty. By poverty we mean something
more than pauperism. The latter is a condition of entire dependence upon
charity, while the former is a condition of want, of lack, of being
without, though not necessarily a condition of complete dependence.’

“It is in this view that the proper understanding of the subject given me,
in its comprehensiveness and the development of the principles which
underlie it, means the consideration of the abolition of pauperism and the
eradication of crime; and the definitions given by Mr. Steward carry with
them all the elements of those great [196]special inquiries embodied in the
very existence of our vast charitable, penal, and reformatory institutions,
‘How shall poverty be abolished, and crime be eradicated?’ ” 27

Let the circumstances be favorable or unfavorable, let the governments

be liberal or despotic, let the religion and commercial systems be what
they may, crime has always existed. This is why it would exist even if
there were no longer any unemployment, if everyone had received an
education, if the efforts of temperance societies and social reformers had
been realized, and Christianity were universal. But all these good
influences together would certainly reduce crime to the minimum.
Criminality will decrease but little if the improvements have to do
simply with the physical condition and not at the same time with moral
and intellectual conditions. It is, on the other hand, not to be disputed,
according to the author, that a development of these last qualities will
have a favorable influence upon criminality. For the man who has
received an education will betake himself to crime less quickly than the
ignorant man, while on account of his education he will generally be able
to find work to protect him against poverty and crime. The lack of work
is an important cause of crime; for example, among the convicts of
Massachusetts there were 68% who had been without work, and in the
whole United States in 1890, 74% of the murderers had been without
work. This lack of employment may have been because of an antipathy
to work or of a lack of opportunity. And it is this last case especially that
occurs only too often in the present social organization.

Great improvements are urgently demanded; living conditions must

become better and more sanitary, and work must be better paid. The
fundamental complaint of the writer against political economy is that it
has not considered moral forces as one of its elements. As soon as it shall
have considered them as such it will have entered upon the way that
leads to real improvements.

After having indicated what these improvements ought to be, the author
goes on in these terms: “In a state in which labor had all its rights there
would be, of course, little pauperism and little crime. On the other hand,
the undue subjection of the laboring man must tend to make paupers and
criminals, and entail a financial burden upon wealth which it would have
been easier to prevent than to endure; and this prevention must come in a
large degree through educated labor. [197]

“Do not understand me as desiring to give the impression that I believe

crime to be a necessary accompaniment of our industrial system. I have
labored in other places and at other times to prove the reverse, and I
believe the reverse to be true. Our sober, industrious working men and
women are as free from vicious and criminal courses as any other class.
What I am contending for, relates entirely to conditions affecting the few.
The great volume of crime is found outside the real ranks of industry.” 28

It might still be asked whether civilization favors crime. The answer

would have to be at once affirmative and negative. Affirmative in
exceptional times, otherwise negative. The more civilization advances,
the better the condition of the working people will become, the more
equitable will be the division of profits, and the more crime will
diminish. The attempts of Robert Owen and many others prove the truth
of this.

The author closes his study with these words: “Trade instruction,
technical education, manual training—all these are efficient elements in
the reduction of crime, because they all help to better and truer economic
conditions. I think, from what I have said, the elements of solution are
clearly discernible. Justice to labor, equitable distribution of profits under
some system which I feel sure will supersede the present, and without
resorting to socialism, instruction in trades by which a man can earn his
living outside a penal institution, the practical application of the great
moral law in all business relations—all these elements, with the more
enlightened treatment of the criminal when apprehended, will lead to a
reduction in the volume of crime, but not to the millennium; for ‘human
experience from time immemorial tells us that the earth neither was, nor
is, nor ever will be, a heaven, nor yet a hell’, (Dr. A. Schäffle) but the
endeavor of right-minded men and women, the endeavor of every
government, should be to make it less a hell and more a heaven.” 29

—The study of Carroll D. Wright contains some very true observations

upon the relation between crime and economic conditions (for example,
upon the difference between the slave and the free laborer, whose liberty
consists chiefly in this, that he can die of hunger if he cannot find work
or is no longer able to work). But in general the work gives the
impression of vagueness and hesitation proper to the school of
economists and sociologists to which the writer belongs. They condemn
certain manifestations of capitalism, but [198]wish to maintain the “causa
causarum”, the system itself. This is not the place to speak of this more
fully and I will confine myself to pointing out some historical errors of
the author.

In the first place, a classification of economic systems into only three is

incomplete. It is very surprising that this error should have been made by
an American. For the North American Indians neither lived under the
feudal system nor under that of free labor, and for the most part never
knew slavery; the author has forgotten to mention the primitive-
communistic mode of production.

In the second place, it is incorrect to call all those who lived under the
feudal system “poor.”

In the third place it was not to the feudal system that the famous
executions under Henry VIII belong, but rather to incipient capitalism
which, by dispossessing a great number of peasants, made them poor.
(Compare More, “Utopia”, and Marx, “Capital.”)—
Among the partisans of the bio-sociological doctrine, I think that certain other authors should
also be classed, for example: L. Gordon Rylands, “Crime, Its Causes and Remedy”; Dallemagne
(see p. 224 of the “Actes du IIIme Congrès d’Anthrop. Crimin.”); Drill (see “Des principes
fondamentaux de l’école d’anthropologie criminelle” and “Les fondements et le but de la
responsabilité pénale”); Kovalewsky, “La psychologie criminelle”; Orchanski, “Les criminels
russes.” With regard to Russian criminologists see Frassati, “Die neue positive Schule des
Strafrechts in Russland.”

The Dutch criminologists must be reckoned as among the bio-sociologists.

G. A. v. Hamel, “De tegenwoordige beweging op het gebied van het strafrecht”, and
“L’anarchisme et le combat contre l’anarchisme au point de vue de l’anthropologie criminelle”;
G. Jelgersma, “De geboren misdadiger”; A. Aletrino, “Twee opstellen over crimineele
anthropologie”, and “Handleiding bij de studie der crimineele anthropologie”; S. R. Steinmetz,
“De ziekten der maatschappij.” Dr. C. Winkler inclines, as it seems to me, rather toward the
opinion of the Italian criminologists. See: “Iets over crimineele anthropologie.”

[N A E : Of the recent literature there should be mentioned: in

Germany, especially Aschaffenburg, “Das Verbrechen und seine Bekämpfung”, and Wulffen,
“Psychologie des Verbrechens.” In Holland the authors already named, van Kan, and de Roos are
to be classed among the bio-sociologists. For Russia there should be added von Bechterew, “Das
Verbrechertum im Lichte der objektiven Psychologie.” In America it seems to me more reliance
is placed upon the Italian theory than in Europe; see, for example, Henderson, “Introduction into
the Study of the Dependent, Defective, and Delinquent Classes.” Upon the recent development of
criminology in Holland, England, Sweden, Denmark, Russia, Greece, and Servia see the study
already cited of von Thót, “Die positive Strafrechtsschule in einigen europäischen Ländern.”]
[199]

1 P. 13. ↑
2 Pp. 13–18. ↑
3 Pp. 19–22. ↑
4 P. 6. ↑
5 P. 37. ↑
6 Cf. Colajanni, “Sociologia criminale”, II, p. 558. ↑
7 Pp. 82, 83. ↑
8 Pp. 106, 107. ↑
9 [14% of 7% is about 1%, of course. The mistake is Morrison’s.—T .] ↑
10In his article, “The Interpretation of Criminal Statistics” (“Journal of the Royal Statistical
Society”), 1897, Morrison says: “I am inclined to agree … that the attempt to institute …
comparisons (of international character) is at present impracticable” (p. 15). It would have been
well if he had not forgotten this opinion when he wrote “Crime and its Causes.” ↑
11 See, by the same author: “Juvenile Offenders” (chaps. VII and VIII). ↑
12 See, by the same author, “Das Verbrechen als sozial-pathologische Erscheinung.” ↑
13 P. 59. ↑
14 Pp. 59, 60. ↑
15 [N A E : I am glad to be able to call the reader’s attention to the fact
that Professor von Liszt has changed his opinion with regard to the bio-sociological
hypothesis of crime, and must now be ranked with the partisans of the environmental school.
(See “Die gesellschaftlichen Faktoren der Kriminalität”, pp. 438–439, “Strafrechtliche Aufsätze
und Vorträge”, II.)
Chiefly on account of Professor von Liszt’s initiative, there has appeared [190]in Germany a
series of monographs upon the criminality of a province, of a district, etc. (criminal topography).
Here are the titles in chronological order: K. Böhmert, “Die sächsische Kriminalstatistik mit
besonderer Rücksicht auf die Jahre 1882–1887” (“Zeitschr. d. K. Sächsische Statistischen
Bureaus”, XXXV; Damme, “Die Kriminalität in ihre Zusammenhänge in der Provinz Schleswig-
Holstein vom Januar 1882 bis dahin 1890” (“Zeitschr. f. d. ges. Strafrechtsw.”, XII.); W.
Weidemann, “Die Ursachen der Kriminalität im Herzogtum Sachsen-Meiningen”; B. Blau,
“Kriminalstatistische Untersuchung der Kreise Marienwerder und Thorn”; P. Frauenstädt,
“Kriminalistische Heimatkunde” (“Zeitschr. f. Socialwissenschaft”, VI.); E. Peterselie,
“Untersuchungen über die Kriminalität in der Provinz Sachsen”; F. Dochow, “Die Kriminalität
im Amtsbezirk Heidelberg”; F. Galle, “Untersuchung über die Kriminalität in der Provinz
Schlesien” (“Gerichtssaal” LXXI, LXXII); W. Stöwesand, “Die Kriminalität in der Provinz Posen
und ihre Ursachen”; A. Sauer, “Frauenkriminalität in Amtsbezirk Mannheim”.] ↑
16 To my great satisfaction Dr. Näcke says, in a criticism of my book, that through reading it,
from a bio-sociologist he has almost become an out-and-out follower of the environmental
theory (of the French school) (“Archiv f. Krim.-anthr. u. Kriminalstatistik,” XXI, p. 188). ↑
Pp. 96, 97. ↑
17 18 P. 98. ↑
19 Pp. 98, 99. ↑
20 P. 177. ↑
21 P. 208.
See also, by the same author: “Die neueren Erscheinungen auf kriminal-anthropologischen
Gebiete und ihre Bedeutung” (“Zeitschrift f. d. ges. Strafrw.”, XIV.).
[N A E : See also Näcke’s “Die Ueberbleibsel der Lombrosischen
kriminalanthropologischen Theorien” (“Archiv f. Krim.-anthr. u. Kriminalität”, L. (1912), pp.
326 ff.)] ↑
22 In his introduction this author distinguishes three groups of factors: the cosmic, the biological,
and the social. Consequently he can be ranked in the same category with Professor Ferri.
However, I have thought that he ought rather to be classed among the bio-sociologists, because
he gives a preponderating importance to the social factors. As he himself says (p. vii of the
introduction), his work is one of the proofs that the divergences of opinions of the schools of
criminologists is not great. ↑
23 Pp. 371, 372. ↑
24 P. 97. ↑
25 P. 90. ↑
26 Pp. 100, 101. ↑
27 Pp. 103, 104. ↑
28 P. 113. ↑
29 Pp. 115, 116. ↑
[Contents]
CHAPTER VI.
 THE SPIRITUALISTS. 1
[Contents]

I.

H. J .

It is in the second chapter of his “France criminelle”, bearing the title of

“Richesse et misère”, that the author gives his opinion of the connection
between criminality and economic conditions. 2

According to Joly, the opinion expressed by many persons that poverty is

the great factor in criminality, appears to be true, at least at first sight; for
the problem is, in fact, very complex and difficult.

In the first place a distinction must be made between voluntary and

involuntary poverty. “With vagrants by profession, beggars from choice
and speculation, drunkards, those who have made up their minds to live
no matter how, gamblers who have systematically used up their capital
and that of their family, workmen who have given up work only from
rebellion against society, yes, with all these poverty leads to crime.” 3 The
second kind of poverty springs from disease, accidents, etc., i.e. from
causes independent of the will of man.

“There are, then, evidently innocent poor people; and there are others so
much the more pardonable as the consequences have been aggravated by
the fault of others. Is it then in the intermediate region that we must seek
for the influences that lead to evil? It may be. This region is not unknown
to us. Let us seek here, without taking sides in any way, and examine the
facts as well as we can.” 4

In opposition to the continual increase of criminality the author shows

that the national wealth has increased, although—and this should not be
forgotten—real property, with the exception of small [200]holdings, has
decreased; the condition of the rural workers, on the contrary, has
improved.

In the second place Joly calls attention to the condition of working-men in

the cities. According to him the question of whether it has grown worse
must be answered in the negative, for the emigration from the country to
the city always keeps up. Notwithstanding their higher wages men are no
better off there, since they spend upon amusements their additional
earnings. If criminality increases among them it is not, then, in
involuntary poverty that the cause is to be found.

At the same time with the increase of wages the price of food must be
noted. In most of the departments of France these prices have risen in the
same proportion as wages. Consequently the working-man has not
become better off. He has new needs, but when he has met these he has
not enough left for the primary necessities. It is not economic factors, but
moral factors, that come into play here.

The proportional increase of wages and the price of food, of which

mention has been made above, in the different departments of France, is
not met with in the departments of Morbihan, Vendée, Bouches-du-
Rhône, and Hérault. In the first two, prices have risen much more than
wages, while the contrary appears in the last two. As regards criminality,
the first two take their place among those that show the lowest figures, the
last two among those that show the highest. Joly draws from this the
conclusion that social life is too complicated for us to be able to learn the
morality of persons merely from the rise or fall of wages. In any case it is
certain, according to him, that the increase of criminality that has been
shown is not due to poverty, and that consequently we have not the right
to say that poverty in general is one of the primary causes of crime.

However, it must not be lost sight of that in speaking of the increase of

wealth and the rise in wages, we are speaking only of average figures, and
that there are many individuals whose wages remain below this average.
“Now, where do we see the greatest differences, and where are they most
felt? Exactly in wealthy epochs and in wealthy surroundings. So it is in
the poor departments that crimes against property develop the least. There
are two reasons for this, psychological and social. What any man feels the
most is not being or having absolutely; it is being or having more or less
than those who surround him. What must drive men to crime chiefly,
then, is the comparison of wealth with poverty.” 5 [201]

Joly thinks he can produce further data upon the connection between
crime and poverty by checking up the kind of articles that are most
frequently stolen. Out of 1000 cases of theft (assizes, 1830–1860) there
were 395 cases of theft of money, next came thefts of personal property,
then clothing, etc., then successively, different kinds of merchandise,
jewelry and table-ware, food, grain, etc., and living domestic animals.
This information does not teach us much about the relationship in
question. For the articles stolen can be sold, which prevents our
discovering the motives of the crime.

The analysis of the value of the objects stolen also gives us little
information. During a period of 25 years the cases of theft of 10 to 50
francs were the most numerous (about 30%), next those of 100 to 1000
francs, then those of less than 10 francs. Ten years later the most
numerous were those of 100 to 1000 francs (33%).

However, on the strength of the statements of an old police officer, Joly

thinks he can draw the conclusion that poverty enters only to a small
extent into the etiology of crime. Nevertheless the established fact that a
rise in the price of grain is associated with an increase of criminality,
contradicts this. But according to Joly the contradiction is only apparent.
“Famines are exceptional; theft is constant and while famines are always
decreasing, theft is always increasing. Suppose that in ordinary years
people did not steal or stole very little; the difficult moments would find
them more patient, more resolute to have recourse to legal and
permissible means; we should not see them so prompt to extricate
themselves from their difficulties by simply taking the property of others.
But what resistance can we count on from those who have long had the
habit of stealing from fancy, cupidity, or a desire to gormandize? What
resistance can be hoped for, especially when the habit has begun in youth?
Now, we have seen that a third of the thefts are committed by minor
children.” 6

The weakness of the influence of economic conditions upon criminality

is, according to Joly, further proved by the fact that times of prosperity are
not accompanied by a decrease in the number but by a change in the kind
of crime committed (as Prins and Garofalo have shown). Cheap wine
makes most crimes against persons increase. But the low price of grain
has the same effect, since the working-man, when his condition has
improved even a little, spends his additional earnings in all kinds of
amusements, which, in their turn, may be the source of crime. This is
proved, for example, by the fact that in Marseilles suicides are most
numerous on Sunday and Monday, and [202]fewest on Friday and
Saturday, a fact explained by the pay-days of the working people. This is
also applicable to crimes against persons.

To prove his thesis the author reminds us of the fact that domestics,
although not subject to privations, furnish a large percentage of the thefts;
that the percentage of thefts committed by unmarried persons continually
increases; and finally, that the investigation (of 107 cases tried in 10 years
before the assizes at Rheims), made by a magistrate (Ch. Vuébat), has
proved that economic factors have little importance for criminality, and
moral factors much. “To sum up, it is not the increase of poverty that is
the cause of the increase of crime; it is not property in general that leads
to crime against property. This is not saying that poverty, and innocent
poverty, does not exist, nor that it is not a bad counselor, nor that it is not
the duty of the upper classes and of the government to concern themselves
with the lot of the poor. It does mean that a man is less led into evil-doing
by the faults of others or by the fault of destiny than by his personal
faults.” 7

—If one considers the study of the question by Joly from a critical point
of view, the thing that most strikes the attention is this; that he puts
economic causes by the side of the moral causes of criminality. As I have
already more than once remarked, this is not sound. Every crime finds its
origin in moral causes, or better, in the lack of moral ideas dominant at a
certain period. But one of the principal questions to be answered is this;
how far do these moral ideas find their origin in definite economic
conditions? Joly, being a spiritualist, has not succeeded in formulating this
problem well, still less in solving it.

His entire treatment of the relation between criminality and economic

conditions is characterized by a striking narrowness. He speaks of poverty
and wealth as if they were the most natural things in the world, and had
no need to be explained. Then he makes a distinction between voluntary
and involuntary poverty, and excludes the former from the discussion as
having nothing to do with the problem in question. This manner of
reasoning has rather the air of a penitential sermon than of a scientific
investigation. “Voluntary poverty” 8 [203]is a contradiction in terms. For a
man tries as far as possible to spare himself suffering and to gain
happiness. There can never be any such thing then as voluntary poverty.

Though his terms are unhappily chosen, Joly only wishes to point out that
poverty may originate in circumstances or in the person himself. But in
treating this problem he should not have been silent on a very important,
and very difficult point, namely how far these individual causes of
poverty are based upon the present economic system.

If the question treated by Joly is incomplete, what he says neither has any
great value, nor does it prove at all his statement that the influence of
economic conditions is small. He gives but a few pages to the very
difficult question of whether the standard of living of the working class
has been raised. He brings out the universally observed fact that the wants
of all classes have increased, but he seems not to have noted that this is
intimately bound up with the present mode of production. He cites the
testimony of an old police officer, and the investigations of a magistrate
(investigations, it may be said in passing, that reached the colossal
number of 107 cases) in order to prove that most crimes are not
committed as a consequence of immediate privations—as if this were
enough to solve the question of how far economic conditions enter into
the causes of crime.— 9
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II.

L. P . 10

In his ninth chapter, entitled “Le crime et la misère,” this author gives
some pages to our subject. It is incontestable, according to him, that
poverty exerts an influence upon criminality. The number of crimes
increases in the years of poor crops, or when there is a lack of work owing
to industrial or agricultural crises. Thus, criminality reached high figures
in 1840, 1847, and 1854, when the price of grain was high.

In consequence of this and of his personal experience (the author is a

magistrate) he thinks the opinion of Garofalo is incorrect, that poverty
only gives crime its form and is not a cause of it. For indigence not only
puts morality in danger by depriving some persons of the bare necessities,
but it also causes the children of the poor in the great cities to be brought
up in a pitiable manner. [204]

Although the author is of this opinion, however, he does not subscribe to

the view that “the poor man is dedicated to crime.” On the contrary, a
great proportion of the poor are as honest as possible, and have honorable
toil as their only means of support. Judicial statistics show that the rich
are as guilty of crime as the poor.

“We see, then, that even if all the citizens had means and education, there
would always be criminals; the number of them would be a little less, but
not much. There would always be traders practising deception with regard
to the quantity and quality of their goods, merchants adulterating food,
employes abusing the confidence of their employers, notaries embezzling
the funds entrusted to them; there would always be wives poisoning their
husbands, and husbands killing their wives, and teachers of lay and
denominational schools committing sexual crimes.” 11

Most crimes are not committed to escape from want, but rather to procure
luxury and pleasure. Hence the rich as well as the poor commit them. “To
sum up, I do not believe that the rich are less tempted to take the property
of others than the poor. The more wealth one has the more he wants;
further, the more wealth increases, the more factitious wants increase, and
if one’s wealth becomes insufficient to satisfy these wants, the thought of
increasing it by any means is not slow in coming. Admitting that some
day all men may be rich and educated, though that seems to me to be an
impossible dream, cupidity will always make thieves, rogues, and forgers;
hatred and revenge will always inspire homicide, murder, and arson;
debauchery will always lead to sexual crimes. Material and intellectual
progress will never suppress the passions and will not free men from the
struggle that must be maintained against them. It will always be necessary
to repress anger and sensuality, to put a bridle upon cupidity, and, in a
word, to set the soul free from its passions. The increase of well-being
and education will never make the police and the penal code
unnecessary.” 12

—It will be superfluous to give a criticism of this discussion. We have

already met several authors who took this point of view. Proal is like the
others who do not even know how to put the question of the influence of
economic conditions clearly, who do not comprehend that poverty and
riches are both the inevitable consequences of the same system.— [205]

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III.

M. B . 13

“It is an incontestable fact that the influence of poverty upon criminality

is immense.” It is thus that the author expresses himself in the
introduction to his work. I shall set forth his manner of defending this
thesis in the following lines.
The most disastrous consequence of poverty is the temptation to procure
illicitly what is needed for one’s well-being. We can see this in the crimes
of crowds as well as in individual crimes. At the 3d Congress of Criminal
Anthropology, Professor H. Denis gave certain facts with regard to the
correlation between crime and the economic status. 14 During the years
from 1845 to 1849 the curve of criminality coincides exactly with that of
the price of wheat. But at the close of 1850 the two curves diverge, when
the curve of wheat is replaced by that of staple foods in general. If we
follow the trend of wages attentively we shall note that they also are
higher in the last years. The increase of criminality is no longer to be
explained, therefore, by this rise. To what, then, is it due?

In the author’s opinion we must note, first, that forced unemployment is

increasing; second, that poverty and wealth have force only by
comparison.

The well-being of the working man has increased, but that of men in
general much more so. This explains only a part of the phenomena given
above. The rest of his explanation is as follows: “There are, in fact, other
elements, which may neutralize the influence of the environment. To all
the solicitations of vice and crime man can offer resistance, finding his
refuge and support in moral force.

“Now, go to the poor and unhappy, and ask them what prevents them from
quickly slipping downhill into crime, and you will find in their mouths the
expression, naïve, but strong, of the idea of duty; and this idea of duty you
will find precisely and clearly only in that of submission to an absolute,
incontestable, unconditioned authority, that of God. A man whom no one
would suspect of any extraordinary good-will toward religion, M. Jules
Simon, said a few months ago, ‘The peoples must be brought to God if we
want justice and order to reign.’

“Must not even those who do not themselves believe, recognize in

[206]this idea of duty, of law imposed by a God, the creator, an ‘idée-
force,’ a source in itself of energy and activity against evil and for good?
“It is in the diminution of this energy, in the efforts that have been made
to tear out of the hearts of the poor this root, whose flower is hope, and
whose fruit is virtue, that I am inclined to see one of the causes of the
frightful increase of crime, which all concede, some with surprise and all
with dismay.” 15

In the second part of his discussion the author brings up the degenerating
influence of poverty. Although a man has a free will at his disposal, it is
necessary that he should also have an organism capable of putting the will
into action. Hence it is that degeneracy makes its effect felt upon man.

“Now, misery is just the totality of the most imperious desires remaining
unsatisfied; it is the love of life, the love of well-being left without
gratification; it is the suffering of the wife one would like to see happy,
the hunger of the children to whom one would like to give bread. And if
crime can give this bread that one cannot find, if crime can satisfy all
these appetites, all these desires, it will present itself with the most
powerful attractions, with the charm of fascination. Will the unfortunate
man have the supreme energy to prefer duty to enjoyment?” 16

Poverty is a bad preparatory school for this contest; a weakened organism

will succumb more easily to temptation. And generally this is
accompanied by a lack of education and of the development of the higher
faculties.

In following the course of life of a proletarian we see that the child of the
proletariat carries, often from his birth, the signs of degeneracy, since his
mother was forced to work hard during her pregnancy. From his
childhood he is ill nourished, and grows up in an unhealthful
environment. There can hardly be any question of education, for his father
and mother work in the shop, which prevents any family life. The child is
not attached to the dwelling of his parents and wanders in the street,
where he picks up bad habits. Arrived at adolescence, he enters the
factory to pass the greater part of his time in monotonous occupations.
And once full grown, life for him consists only in routine labor,
monotonous and without end. “However, this man has a soul, he has a
mind! But it slumbers in a perpetual inertia. Nothing in his life has
awakened what is grand, noble, and divine in this reasonable being. How
can we hope to have the moral energy and the sublime ambition for good
survive in him?” 17 [207]

However unhappy this manner of life may be, there is still lacking the
greatest misfortune that can befall the proletarian; forced inaction. This is
one of the chief causes that can drive him to commit crime! And then
there is another scourge of the working class, alcoholism. “Source of
poverty without any doubt, but fruit of poverty incontestably.” Finally, of
all the proletarians the most unhappy are the women. Low wages and the
monotony of tiresome work too often make prostitutes of them.

To all these criminogenous causes the Christian must oppose the moral
sentiments which are drawn from his religion. His motto must be, “rather
death than dishonor.” But for that he must have heroic courage, which
most people lack. Perhaps before God these sinners will find grace.

But all this cannot be a reason for society to allow to exist these
scandalous conditions, which, in a few words, are as follows:
“Insufficiency of the means of subsistence; work too long continued, as
measured by the exhaustion resulting from it; work demanded of mothers
of families; excessive and unsuitable labor expected of children; improper
conditions in certain industries.” 18

This must be changed, and it is possible to do so. Not, however, with the
aid of the state, for then industry would lose the elasticity so necessary to
it. But the change must be brought about by association of the
proletarians. “In the forced individualism of the laborers is to be found the
cause of their ruin; the salvation must be found in association.” The
author closes by referring to the encyclical, “Rerum novarum”, in which it
is said that Christian workmen must band together, and by encouraging
the rich to help their less privileged brothers. 19

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