Abstract
Peter Becker, Verderbnis und Entartung. Eine Geschichte der Kriminologie des 19. Jahrhunderts als Diskurs und Praxis, Veröffentlichungen des Max-Planck-Instituts für Geschichte 176, Vandenhoeck & Ruprecht: Göttingen, 2002; 416 pp.; 9783525351727, €46.00 (hbk)
James M. Donovan, Juries and the Transformation of Criminal Justice in France in the Nineteenth and Twentieth Centuries, Studies in Legal History, University of North Carolina Press: Chapel Hill, NC, 2010; ix + 272 pp.; 9780807833636, $65.00 (hbk)
Benoît Garnot, Histoire de la justice, France XVIe–XXIe siècle, Collection Folio histoire 173, Gallimard: Paris, 2009; 800 pp.; 9782070396689, €13.00 (pbk)
Elmar Geus, Mörder, Diebe, Räuber. Historische Betrachtung des deutschen Strafrechts von der Carolina bis zum Reichsstrafgesetzbuch, Spektrum Kulturwissenschaften 6, Scrîpvaz-Verlag Christof Krauskopf: Berlin, 2002; 292 pp., 10 illus.; 9783931278144, €20.00 (pbk)
Sylvia Kesper-Biermann, Einheit und Recht. Strafgesetzgebung und Kriminalrechtsexperten in Deutschland vom Beginn des 19. Jahrhunderts bis zum Reichsstrafgesetzbuch von 1871, Veröffentlichungen des Max-Planck-Instituts für europäische Rechtsgeschichte 245, Vittorio Klostermann: Frankfurt a. M., 2009; viii + 502 pp.; 9783465040781, €99.00 (pbk)
Jacques Krynen, L’état de justice, France XIIIe–XXe siècle. I. L’idéologie de la magistrature ancienne, Collection Bibliothèque des Histoires, Gallimard: Paris 2009; 336 pp.; 9782070124978, €22.00 (pbk)
Scholars have long shown an interest in criminal jurisprudence, legislation and the criminal justice system in Europe, enquiring into the ways in which justice changed in the modern age. Over the course of the nineteenth century, the concepts and practices of justice were transformed through war and revolution, urbanization and industrialization, bureaucratization and the rise of the press. While the literature has tended to consider the history of justice as an extension of the history of politics, recent studies have begun to explore the ideas, meanings and functions of justice through its social and cultural manifestations. The six books under review contribute to this trend.
In Germany, the nineteenth century unification of the state also occurred in the sphere of criminal law. The consolidation and standardization of German penal law culminated in the promulgation of the Imperial German Criminal Code (Reichsstrafgesetzbuch) of 1871, the subject of Elmar Geus’s Mörder, Diebe, Räuber. His book employs a long historical view of German, principally Prussian, penal legislation between the sixteenth and nineteenth centuries to argue that the codification of the common criminal law played a central part in the politics of state formation. Three sections are devoted to the landmark pieces of legislation of the 1532 Constitutio Criminalis Carolina, the criminal law section of the Prussian state’s Allgemeines Landrecht of 1794 and the Reichsstrafgesetzbuch of 1871, each of which is divided into a history of the statutes and an analysis of the content in relation to homicide, theft and robbery. Geus analyses Prussia’s criminal code of 1851 as a tool of ‘internal empire’, which superseded the various penal codes of the independent German states to set the mould for the penal law of the North German Confederation and later the Imperial German Criminal Code.
While Geus acknowledges that there exists an abundance of relevant archival material, he draws exclusively on published texts. Moreover, he references none of the relevant English-language literature, which would have broadened the perimeters of his study. Absent, for instance, in Geus’s discussion of the death penalty is the standard work on the subject by Richard J. Evans, Rituals of Retribution: Capital Punishment in Germany, 1600–1987 (1996). Nor does the author develop further his critical observation, made in the introduction, that legal, social and political histories ought to be brought together. On the whole, social themes are neglected in Geus’s study. These issues aside, his book offers some unique insights into the history of more than three centuries of German criminal legislation.
Rather than scrutinizing penal legislation, other scholars have turned to the legislative process itself to inquire into the making of justice. In Einheit und Recht, Sylvia Kesper-Biermann investigates the role of legal specialists in creating German criminal legislation from the eighteenth century to the codification of the Reichsstrafgesetzbuch of 1871. Kesper-Biermann divides the period into four stages: first, the beginning of modern reforms starting with the Codex iuris Bavarici criminalis of 1751; second, the predominantly legal-philosophical debates of the late eighteenth and early nineteenth century that questioned the legitimacy of state power to punish; third, the intensification of codification work in the 1830s and 1840s that resulted in a number of new state codes; and fourth, the debates between 1850 and the founding of the Reich that focused mainly around the national standardization of the criminal law.
The longest of her chapters reconstructs the legislative process in the states, described by Kesper-Biermann as a form of ‘scholarly political consulting’ (455), to show that experts’ commentaries influenced the arguments of both government representatives and parliamentarians. Drafts of legislation were evaluated by judges and scholars of criminal law, some published for discussion, and revised by state committees before being submitted for approval by the monarch and opened for parliamentary debate. At the same time, statesmen instrumentalized specialist opinion for political aims. Kesper-Biermann points out that the development of the criminal law in the first two-thirds of the century was associated with ideas about emancipation from Napoleonic legislation and nationalism – especially after the Revolution of 1848 and under the changed conditions of the 1850s and 1860s when an intense debate was waged about the achievement of national objectives. Particularly after 1866, it became a priority of national liberal reform policy. Less convincing is the book’s assertion that the idea of a unified penal code existed already in the first half of the century and was exhibited by national unification tendencies of the states (236). In southern Germany, Napoleon left behind Code pénal criminal law and a legal profession trained in French law which resisted unification in the Prussian model. Kesper-Biermann’s Einheit und Recht thus closes a gap in research on the crafting of criminal law in modern Germany.
As state justice institutions expanded over the course of the century, they evolved in the climate of contemporaneous scientific and philosophical thought. Criminal justice practitioners played an essential part in determining discourses of crime in Germany, as Peter Becker shows in his book Verderbnis und Entartung. Drawing on published and archival sources, including police and court reports and writings by prison officials, medical practitioners, philosophers, psychiatrists and other experts, the study describes the rise of scientific criminology in nineteenth-century Germany. Becker identifies a discursive shift in the classification of deviants and criminals from the moral understanding of criminality to, in the second half of the century, a specialized medical and biological one, mirroring the turn from earlier notions of the ‘fallen’ or ‘corrupted’ individual to alternative theories of the criminal ‘born’ with pre-existing pathological tendencies. Becker attributes this shift in ‘narrative models’ to the mid-century replacement of law enforcement personnel with trained criminological specialists. The influence of biological theories of crime and social Darwinism was expressed in criminal policy debates by radical calls for sterilization, life-long incarceration or shipping repeat offenders off to the colonies.
Becker’s book pays more attention to criminological discourses than their practical effects. Inside Germany, the connection between ideas about criminal behaviour and its regulation was also affected by a growing awareness of crime statistics, which underscored the threat from repeat offenders in particular, and the expansion of large cities, provoking social and political anxieties about crime and deviance, subjects studied in depth by Eric A. Johnson’s Urbanization and Crime: Germany, 1871–1914 (1995). Becker’s omission of the international dimension of criminological debates, notably the international prison congresses, regularly scheduled since 1872, and the leading criminal law reform organization of the late nineteenth century, the Internationale Kriminalistische Vereinigung, misleadingly suggests a uniformity of ideas about the root causes of crime. Theories and resolutions of criminal control remained under dispute at the beginning of the twentieth century and during the Third Reich. Becker’s Verderbnis und Entartung thus opens the question of the relationship between expert discourse and institutional practice for future research.
The studies of justice in France under review ask a similar set of questions. Each of the books confronts the conflict between surviving ideas of royal or class justice and the role of legal practitioners, principally magistrates, and the public in shaping the institutions of justice. In L’état de justice, Jacques Krynen surveys the ideas of the judiciary and its relation to royal power from the late middle ages to the twentieth century, analysing whose justice prevailed under the ‘rule of justice’. The first half of the book focuses primarily on the theoretical and doctrinal writings of a number of jurists, including the prominent legal practitioners and philosophers Jean Bodin and Henri François d’Aguesseau, as well as lesser-known figures such as Pierre de Belleperche, Bernard de La Roche-Flavin and Louis Le Caron. Whether their ideas and theories about justice reflect discrete, individual opinions or a distinct political culture is not always clear. The second half of the study tells of the struggle between the monarchy and parliament. The first of two volumes, this book deals with the ideology of the old judiciary, and legal commentaries and tracts on justice are evaluated in a detailed and precise manner. Krynen’s accomplished study provides a valuable view into the ideas of the judiciary in France.
Another trend in the scholarship has been to analyse the effects of these ideas in everyday justice. Working from an impressive array of primary sources and literature, Benoît Garnot looks at the history of justice in France from the early modern period to the present in Histoire de la justice. The book addresses the rupture and restoration of the mode of justice of the ancien régime, which in the nineteenth century included the recentralizing of justice, the rationalizing of the system and the reinstating of capital punishment, but explains the history of justice primarily through the demands of the litigants. The issue of ‘class justice’ is raised with fascinating results: while justice became increasingly accessible to the population through legal aid, fewer aided cases succeeded, and the process of justice remained coupled with the privileged and wealthy.
Garnot’s study presents the social history of justice. The book emphasizes the weight, particularly since the middle of the century, of public opinion in connection with the rise of the press. Though justice was made less a public spectacle (for instance, the principle of the non-publicity of executions was adopted for capital punishment), with the addition of the press, judicial rituals of trial and punishment were reported as public dramas. Interested groups became ‘entrepreneurs de morale’ and a source of new laws, on the condition that their actions met the approval of political actors. The experiences of urbanization and industrialization are related to fears of supposedly rising rates of criminality, an increase in the meting out of prison sentences intended to combat and control poverty and repress vagrancy, the first great labour strikes, the rise of secret societies and attacks against heads of state. Overall, Garnot’s Histoire de la justice is a rich and absorbing synthesis of scholarship on justice and society in France.
Following the Revolution, a participatory role in the criminal justice system was extended to the public in the form of trial juries, setting the stage for conflicting interpretations of justice in nineteenth-century France. Juries were introduced in 1791 as an expression of the sovereignty of the French people and were not eliminated during the nineteenth century, despite exhibiting independence from political and judicial authorities. In Juries and the Transformation of Criminal Justice in France in the Nineteenth and Twentieth Centuries, James M. Donovan argues that the institution of trial juries directly influenced the reform of the criminal justice system. Drawing on the reports and statistics of the Ministry of Justice as well as the writings of contemporary jurists, the book shows that panels frequently acquitted political and non-political crimes or convicted the accused on reduced charges, an occurrence Donovan attributes in part to juror resistance to the severe penalties imposed by the Napoleonic Code.
Legislators responded by reducing penalties for certain crimes while critics, chiefly magistrates, gradually undermined panels through ‘correctionalization’ and the movement toward échevinage, finally wrecking the independence of the panels in 1941. Donovan links the phenomenon to wider domestic political affairs, explaining that no government established between 1789 and 1870 lasted for 20 years, and understandings and charges of political crime ‘not only were vague but also shifted with the political winds’ (10). Successive regimes manipulated political and press prosecutions to repress their enemies, which bred cynicism among jurors and put limits on authorities’ regulation of justice. Moreover, Donovan relates the judges’ anti-jury campaign to the political struggle between the conservative judiciary and Republican politicians at the turn of the century. The book devotes some space to framing the French side in Anglo-American affairs. A further comparative view might be beneficial – Germany, for instance, where the competence of jury courts to try political crimes differed according to region and the classification of the crime. Donovan has written a fine study illuminating the relationship between criminal procedure, politics and popular opinion.
Overall, the books under review show that debates about justice in the nineteenth century were not simply another facet of political developments, but embedded in various, often intertwined, contexts, from parliaments and courtrooms to wider social contexts. They produce a portrait of justice in modern Europe that is more complex than many earlier studies suggested. Justice became highly politicized. At the same time, the process of justice increasingly became a matter of public interest. One promising trend in the research is the move beyond the experiences of politicians and practitioners to address those of the greater populace. The public presentation and performance of justice spilled onto the front pages of newspapers and into the streets to affect workers, peasants, women, and those in the social and political minority. In the public realm, ideas about justice and its implementation thus involved disputes over power, status and rights.