The following argument used recently by a French lawyer in the case of the kidnapping and murder of a child clearly indicates that the judicial stage cannot do without this added element, that no judgment, no condemnation is possible without it being provided, in one way or another.
For a number of reasons, this case created a great stir, not only because of the seriousness of the crime, but also because the question of the retention or the abolition of the death penalty was at stake in the case.
In his plea, which was directed against the death penalty more than in favor of the accused, the lawyer stressed the point that very little was known about him, and that the nature of the man had only barely been glimpsed at in the interrogations and in the psychiatric examinations.
And he made this amazing remark (I quote approximately): Can one condemn to death a person one does not know?
This is probably no more than one illustration of a well-known fact, which could be called the law of the third element, or the Garofalo principle, since Garofalo was the one who formulated it with complete clarity: Criminal law knew only two terms, the offense and the penalty.
The new criminology recognizes three, the crime, the criminal and the means of repression.
In large part, the evolution, if not of the penal systems, at least of the day to day penal practice in many countries, is determined by the gradual emergence in the course of the 19th century of this additional character.
At first a pale phantom, used to adjust the penalty determined by the judge for the crime, this character becomes gradually more substantial, more solid and more real, until finally it is the crime which seems nothing but a shadow hovering about the criminal, a shadow which must be drawn aside in order to reveal the only thing which is now of importance, the criminal.
Legal justice today has at least as much to do with criminals as with crimes.
Or more precisely, while, for a long time, the criminal had been no more than the person to whom a crime could be attributed and who could therefore be punished, today, the crime tends to be no more than the event which signals the existence of a dangerous element-that is, more or less dangerous -in the social body.