On the same ground of equilibrium between the rights of the individual and the rights of society, which the positive school aims at restoring, something must be said as to the regulation by which, if the appeal is brought by a condemned person, the punishment cannot be increased. One classical expert in an official position would not even give the right to appeal at all.
Now if appeal is allowed for the purpose of correcting possible mistakes on the part of the original judges, why must we allow this correction in mitigation, and not in increase of punishment? And to this practical assurance of the condemned person that he has nothing to fear from a second trial, which seems to have been given to him for the sole purpose of encouraging him to abuse his power, since appeals are too often a mere dilatory pretext, there is a pendant in the right of the public prosecutor to demand a re- hearing, but only ``in the interest of the law, and without prejudice to the person acquitted.''
A last instance of the same kind of protective regulation for the protection of evil-doers is to be found in the new trials which are permitted only in cases where there has been a condemnation, and that on arbitrary and superficial grounds. Most of the classical commentators on procedure do not dream of the possibility of revision in the case of acquittals, and yet, as Majno justly says, ``even if he has profited by false witness, forged documents, intimidation or corruption of a judge, or any other offence, the acquitted person calmly enjoys his boast, and can even plume himself on his own share in the business without fear of being put on his trial again.'' The Austrian and German codes of procedure admit revision in cases of acquittal; and the positive rule in this connection ought to be that a case should be re-heard when the sentence of condemnation or acquittal is evidently erroneous.
From the same principle of equality between the guarantees of the individual criminal and of honest society we infer the necessity of greater strictness in the indemnification of the victims of crime. For the platonic damages now added to all sorts of sentences, but nearly always ineffectual, we believe that a strict obligation ought to be substituted, the operation of which should be superintended by the State, in the same way as the other consequence of the crime, which is called the punishment. I will return to this when I trace the outline of the positive system of social defence against criminals.
The positive school, precisely because it aims at an equilibrium between individual and social rights, is not content with taking the part of society against the individual. It also takes the part of the individual against society.
In the first place, the very reforms which we propose for the indemnification of the victims of crime, regarded as a social function, as well as the operation of the punishment, have an individualist character. The individualism of the classical school was not even complete as a matter of fact; for the guarantees which it proposed took account of the individual criminal only, and did not touch his victims, who are also individuals, and far more worthy of sympathy and protection.
But, beyond this, we may point to three reforms as an instance of the positive and reasonable guarantees of the individual against the abuse or the defects of social authority. Of these reforms two have been put forward by the classical school also, but, like criminal lunatic asylums, alternatives for short terms of imprisonment, and so on, they have generally remained inoperative, for they are not in harmony with the bulk of traditional theory, and only in a positive system have they any organic and efficacious connection with the data of criminal sociology. I refer to the exercise of popular opinion, the correction of judicial mistakes, and the transfer of sundry punishable offences to the category of civil contraventions.
The institution of a Ministry of Justice corresponds to the demands of general sociology, which exacts division of labour even in collective organisms, and to those of criminal sociology, which requires a special and distinct organ for the social function of defence against crime. Indeed it has become indispensable as a necessary judicial organ, even in nations like England which have not yet formally established it. So that, far from confounding the Public Prosecutor with the judicial body, we see the necessity of giving to this office a more elevated character and a distinct personality, with ampler guarantees of independence of the executive power.