From Free Will to Social Defense (or from Cesare Beccaria to Cesare Lombroso): Julio Herrera and the Criminal Law Codification in Argentina (1903–1922)

Abstract

This paper aims to scrutinize the views of Julio Herrera—one of the most prominent Argentine criminal law jurists of the first half of the 20th century, oddly overlooked by legal historiography—on two criminal codes. First, in 1903, before his fellow senators, Herrera harshly questioned the code in force at the time (styled “Tejedor Code” after its author) for being based on the ideas of the Classical School of Criminology and suggested a complete overhaul. Some years later, in 1922, in a series of lectures delivered in Buenos Aires and Córdoba, he praised the criminal code then in force—approved a year earlier—in which he noticed the influence of the new ideas of the Italian Positivist School and the German Criminal Policy doctrine. Despite giving a favorable opinion on the code’s general part, he strongly criticized many of its specific sections. We believe that an analysis of Herrera’s remarks before the Senate, in his lectures at the two most prominent law schools in the country, as well as those views contained in his written work, especially La reforma penal, published in 1911, will provide us with some insight on the prevailing ideology at the time, the foreign influences, discussions and transformations Criminal Law in Argentina was subject to during the first decades of the 20th century.

I believe that […] our Criminal Code is one of the worst codes in the world and is in desperate need of reform, not a partial but a full, fundamental, all-encompassing reform, from the definition of offense to that of punishment, consistent with the significant advancements in the field of criminal science, the science which has undergone the most transformations in the last third of the previous century. ⁱ

…it is a great honor for us, the Argentine people, to have approved a code that compares or even surpasses the most remarkable proposals drafted as of late, suiting the most demanding requirements of modern criminal science, and that […] will be a true homage to our nation’s juristic culture. Such honor falls mainly upon the noted criminal law jurist who drafted the proposal, Rodolfo Moreno, upon the patriotic, erudite members of the legislative committees for devoting all their knowledge and efforts to studying it and, last but not least, upon our Honorable Congress for approving it. ⁱⁱ

ⁱ Discurso pronunciado por el Senador Don Julio Herrera en la discusión del proyecto sobre reforma al Código Penal, (Buenos Aires, El Comercio, 1903), pp. 3–4.

ⁱⁱ Conferencias pronunciadas los días 28 de Junio y 4 de Julio por el Dr. Julio Herrera. Facultad de Derecho y Ciencias Sociales, (Buenos Aires, s/e, 1922), p. 48.