THEORIES OF LAW, CRIMINOLOGY AND PENAL REFORM

THEORIES OF LAW, CRIMINOLOGY AND PENAL REFORM

At the beginning of the nineteenth century, legal theory, criminology (in so far as this discipline then had an existence) and penal reform all wore the effects of post- Enlightenment classical thinking. While this had brought about dramatic changes from pre-modern thinking in these areas, the concepts and ideas were still very different from our understandings of such matters today. Nonetheless, subsequent changes in thought provided, at the end of it, the foundation stones for many of the twentieth-century developments in these areas. By the end of the nineteenth century, how it was possible to think about law, criminology and penal reform had become identifiably modern.

At the start of this period, legal theorists had inherited the natural law tradition of their immediate predecessors such as Locke, Rousseau and KANT. Through the work of these scholars and philosophers, legal theory had been able to disengage itself from any links with God and the idea of Divine Law, previously embodied in the absolute monarchs who ruled the pre-modern world. Now, however, reason and rationality were seen as the driving force of law. From being some mysterious, incalculable and unpredictable force, decipherable only by those who ruled, law had become, as it were, man made. It now prescribed certain fundamental rights for all the citizens of a given society (although there were very wide differences between writers such as Locke and Rousseau as to the extent of these rights), who could then call upon the law in protection of them. In such a world law should provide security and order, by reference to some inviolable ideas of justice. Essentially then, legal theory, in the manner of Kant, had become consumed with the idea of what law ought to be. As such, there was no distinction between law and morality, since ‘moral truth was an absolute which could be directly understood a priori by reason, and which could be expressed in the form of a categorical imperative or understandable natural law’ (Lloyd 1971:187). Natural law was pursued to its apotheosis in the nineteenth century by Hegel (see HEGEL AND HEGELIANISM). In his work, it was as if the modern state had simply replaced the absolute monarchs of the old regime as the font and embodiment of law and authority. He saw this teleologically as a binding historical law, wherein the consciousness and will of its people would only attain full realization in this form.

However, during the first half of the nineteenth century, growing importance was given to the need for law not to be seen as obeying abstract principles but instead to meet the demands of increasingly complex industrial societies. There were growing demands on the need for law to represent the interests of the new middle-class power-brokers of modern society. At the same time the consequences of the French Revolution had made clear the dangers of natural law in extremis and led to a retreat from such theories. As a result, we see the emergence of a school of thought which demanded that the law should lay down clear and reliable rules of behaviour upon which individuals, as freethinking rational citizens, could act accordingly. Again, in these respects, we see crucial importance of the work of JEREMY BENTHAM as a nineteenth-century legal theorist. Instead of law corresponding to universal natural principles, for him it should follow the rules of utilitarianism. Here, human action was seen in terms of pleasures and pains, and

Entries A-Z 653

human needs reduced to a calculus of felicity, against which ideas that would produce the greatest happiness for the greatest number would be weighed and tested. As such, law would be objectively judged against human values, pleasures and pains (it did not have some pre-given ‘natural’ qualities). The aim of law was thus to make possible the maximum freedom of each individual to pursue what was good for them. Ideally suited to early nineteenth-century industrialization, there were no longer natural rights that all could ascribe to. Instead, while anti-egalitarian elements must be removed by law to ensure the greatest happiness of the greatest number, the free play of forces (in accordance with laissez-faire economics) would best serve the general interest. Law, as it were, had a peripheral role to play, merely helping to set the ground rules for these forces to take effect.

Yet, notwithstanding his own commit to individualism, Bentham can also be seen as one of the first of the nineteenth-century collectivists: the pursuit of individual happiness was dependent, a priori, on an enhanced role for the state, which would continually have to readjust its legal framework to ensure conditions were possible to bring about Bentham’s continually shifting maxim. Indeed, Bentham himself was a very active social and legal reformer, and there is a unity between his philosophical first principles and his reform plans: most notably, in the area of penal reform, his blueprint for a model prison, the Panopticon. This institution would adhere rigorously to his utilitarian principles in terms of the management of its inmates (its purpose would be to ‘grind rogues honest’, by providing them with productive labour and keeping them under constant surveillance). At the same time, it was to be built by the state but then leased out to a private contractor. Only a handful of such institutions were ever actually built. However, the ideas underpinning it had significant influence on subsequent prison development during the nineteenth century and beyond.

However, a much narrower role for the law was envisaged in the analytical positivism of John Austin and his successors in legal theory. Influenced by the empiricism of AUGUSTE COMTE, whereby understanding of the world was based on observation and experience, rather than a priori ideas and concepts, law was effectively denuded of the social purposes attributed to it by Bentham. In what amounted to a closed logical system, there was a strict separation between the law as it is and the law as it ought to be. The task of analytical positivists such as Austin were to try and identify ‘the law as it is’. Law was divorced entirely from the realm of metaphysics and high ideals, and instead was defined by Austin as ‘a rule laid down for the guidance of an intelligent being by an intelligent being having power over him’ (1876:86). Law, then, was ‘the command of the sovereign’. Laws ‘properly so called’, as opposed to custom, morals and so on, are those set by political superiors to their subordinates, or laws set by private subjects in pursuance of legal rights granted to them, and contain enforceable obligations and sanctions for their breach. At the same time, this ensured that the law was seen as a set of rules existing separately and in its own right, containing within itself (rather than being shaped by reference to any exterior social forces and influences) the seeds of its own development. This very narrow, restricted role was reflected in developments in criminal law, tort and contract. Instead of the elementary forms of protection, care and responsibilities that utilitarianism prescribed, it now cleared the way for nineteenth- century entrepreneurs, providing minimal encumbrances to them, while at the same time assuming that all these were free to make rational choices about the course of business

Encyclopedia of nineteenth-century thought 654

activity they set out on. If they made the wrong choice, there would be nothing the state could do to assist them. In each of these areas of law, there were attempts to develop it on

a consistent and reliable basis, since, in another aspect of nineteenth-century legal theory, without these parameters, the very existence of what was thought to be law was absent: only custom prevailed. Indeed, in the colonizing thrusts of the nineteenth century, such customs could be ignored or repressed and, instead, ‘law’ could be imposed by the colonizing power.

As it was, the administration of criminal law was based around ideas of reason and rationality, with only a very small and reluctant space made available for any departures from this standard, as with the very narrowly prescribed insanity laws in Britain, set out by the M’Naghten Rules in 1843. Similarly, the courts were at pains to keep firmly in check any other defences in criminal law that might undermine implied rationality and responsibility for one’s actions. As regards contract and tort, promises and intentions— expressions of the will—were held to create liability. The growing inclination of judges in the early nineteenth century to award damages for loss of expectation in business dealings was often a reward for diligence and foresight, and a penalty for their lack. At the same time, beyond contractually established relationships, the duties of care owed between individuals and between individuals and the state was kept to a minimum. In effect, rights and responsibilities were contractually rather than normatively based. As such, the Gesellschaft type of law in which these found expression during the first half of the nineteenth century ensured that a whole range of duties towards others, particularly those in relationships of dependency, and taken for granted today, were lacking at that time.

As regards penal reform and criminology, then, in England, Beccaria (1764) had a significant influence on the thinking of such early modern penal reformers as Blackstone, Eden, Romilly and Bentham himself. Notwithstanding the existence of a penal system known as ‘the bloody code’ in England around 1800 (and whose dramatic effects were actually enhanced by a frightened ruling class that held on to power in that country, unlike elsewhere at this time) it began to be challenged by appeals to reason and rationality. The first main target of penal reformers in the early nineteenth century was the death penalty. Its use was significantly curtailed. There were between 6,000 and 7,000 executions in England between 1770 and 1830; but between 1837 and 1868 (when public executions were abolished) there were just 347 (Gatrell 1994). By this point, the death penalty had been abolished for offences such as forgery, coining, sheep and horse stealing, and sacrilege, to name just a few. For all intents and purposes, it was available only for murder after the Offences against the Person Act 1861. At the same time, the administration of punishment began to shift away from reflecting community mores and ritualistic ceremonies towards a more anonymous, routinized, standard form, conducted through the offices of central Government bureaucracy.

In these respects, reform of the prisons was a central component in these new ways of thinking about punishment. From the chaotic, unregulated, disorderly places of detention that they had become in the pre-modern era, by the 1840s they were being turned into more recognizably modern institutions, systematic and purposeful. They were needed not only to replace pre-modern punishments directed primarily at the human body, but, in addition, the increasingly restricted opportunities for transportation. From being mere holding places preliminary to those other forms of punishment, they were now

Entries A-Z 655

constructed around attempts to deter and reform (often reform through deterrence) those who were sent to them, with a combination of labour, penance and reflective solitude. Here, the USA led the way in prison development. There was the separate system (practised at Auburn), where one’s entire prison sentence would be spent in the solitude of one’s cell; and the silent system, originating at Philadelphia, which allowed the prisoners to work together, but in strict silence. A modified version of the two was introduced to the English prisons system in 1843. During the course of the nineteenth century, prisons’ conditions became uniform and unremittingly severe, ensuring adherence to the less-eligibility principle.

As regards criminology, it became something more than an extension of jurisprudence, providing, as it were, a prescription of appropriate responses to breaches of the criminal law. Instead, it became a science wherein those who broke the law were understood as having a fundamental character defect. Initially, it was thought this might stem from the criminars refusal or inability to deny wayward impulses, or as a rational citizen their incorrect calculations about developing their self-interest. As such, criminology begins to develop an understanding of both crimes and criminals. First, we see the development of

a criminal cartology: maps of crime (most notably in the work of Guerry and Quetelet in France and Belgium respectively), whereby, in conjunction with the recording of crime and the production of criminal statistics (which became more systematic in Britain from 1857), it became possible to chart the distribution and demography of crime, and to then match up crime rates with other social indices. Thus, in England, Henry Mayhew (1862) offered a series of empirically supported claims about the pattern and concentration of urban crime: which also seemed to point towards the presence of a distinct criminal class, an acute worry in the mid-nineteenth century. In these respects, criminology embarked on

a search to explain the differences between these concentrations of criminals and the rest of the population, the danger and threat they posed, and their deficiencies in rationality and reasoning (which, it was thought, lay at the heart of their difference). Thus, having identified their locations and social characteristics, it now began to search for their individual features that were likely to propel them towards crime. Hence is the work of the phrenologists Gall and Spurzheim in the first half of the nineteenth century which argued that the shape and contours of the human skull were an external index of character. Here, it would be possible to identify criminals or potential criminals on the basis of their physical appearance. Increasingly, criminality was seen as pathological, in the sense that criminal acts were not the result of reasoned thought but, instead, were the product of physical causes that lay beyond the control of the particular individuals concerned.

This particular phase in the development of criminological thought reached a famous peak in the dramatic findings of CESARE LOMBROSO’s (1876) L’uomo delinquente. Inspired by DARWIN’s theory of evolution and Comte’s empiricism, he produced the concept of ‘the born criminal’. Based on his observations of Italian soldiers and prisoners, he claimed that criminality was an inherited trait, characterized by physical degeneracy and disease, with criminals possessing the anatomical characteristics of primitive throwbacks—low, receding foreheads, facial protuberance, strong jaws and cheek bones, small brains and so on (although he was prepared to modify his views in subsequent editions of his book, placing a less rigid insistence on determinism). While Lombroso’s work on criminal anthropology was particularly influential in Continental

Encyclopedia of nineteenth-century thought 656

Europe, in Britain (and its white colonies) and the USA, the eugenics movement made a more significant impact on criminological thought during the second half of the nineteenth century. Here, the issue of crime and criminality moved to broader social concerns about racial degeneracy, which were beginning to be brought to light in a series of social surveys, official reports and investigative journalism. There were fears that crime, as an inherited trait, would be passed down from one generation to the next and ultimately create an entire race of criminals. Through the development in the work of important members of the eugenics movement (FRANCIS GALTON, Karl Pearson and W.F.R.Weldon) of such statistical concepts as standard deviation and multiple correlation, it was claimed that human qualities, including intellectual ability, were distributed according to the law of ancestral heredity: just as in plant or animal life, there would be a distribution in the racial stock of both good and bad (paupers, the disabled, criminals, lunatics and so on) specimens. However, this distribution would be influenced by the rate of breeding. And, at that time, it seemed that the reproduction rate of the various bad specimens was dramatically exceeding that of the good. What was thus needed to prevent crime was state action—the modern state had to become more interventionist—directed at its biological causes, in the form of sterilization and castration.

We do see the emergence of a more interventionist state, but one that was now prepared to address some of the social causes of crime. Enrico Ferri, a student of Lombroso, emphasized that crime, like other forms of human behaviour, was the product of three interconnected causes: anthropological, physical and social. Once the social causes of crime began to influence the development of criminological thought, then it became clear that (most) crime itself was not the product of some inherited disposition— and that criminals themselves were not constitutionally different from the general population but might be responsible and suitable objects of penal discipline and reform. Instead, there was growing recognition not just that individual criminals were reformable, but, by controlling the conditions of the environment, the state had a role to play both in relation to the causes of crime and more general social conditions indissolubly linked to degeneracy and unfitness. As the English prison chaplain and penal reformer William Morrison wrote:

causes [of crime]…must be examined and dealt with by the statesman and anthropologist. It is the task of the former, aided by the philanthropist, to so ameliorate the social conditions of existence as to deprive crime of its roots; it is the duty of the second to thoroughly investigate the physical and mental causes of crime, and to inquire how far they admit to remedy [my italics].

(1889:22) We are now moving into a new realm of thinking about crime and criminality: one that

involves a shift away from reliance on the criminal law and harsh penal sanctions to deter rational citizens from crime; and a shift from the rigidly deterministic insistence that those who did break the law were ultimately ‘different’ from the rest of the population and irredeemably determined to their fate. Now, what we find taking place is a shift towards concepts of medicalized treatment and training to bring about the reform (or

‘cure’) of criminals. As such, there were increasing demands for the individualization of punishment—punishment that would now match the criminal rather than the crime; and suggestions that criminological experts rather than judges should determine what might

be the most appropriate sanction to cure a particular case of ‘crime illness’. These ideas became particularly prominent in Continental Europe towards the end of the nineteenth century, and led to an emphasis on indeterminate sentencing at the expense of fixed penalties associated with the early modern period.

One of the first areas in which these ideas took root was in relation to the punishment of juvenile offenders. During the course of the nineteenth century, there had been growing recognition that juvenile, or child, offenders constituted a different segment of the criminal class; the principles of rationality and responsibility could not be rigidly applied to them, just as they could to adults. Individual penal reformers and philanthropists such as Mary Carpenter in England had campaigned (successfully) for the introduction of separate institutions for juvenile offenders. This then became a matter of state responsibility with the introduction of industrial and reform schools for ‘wayward juveniles’ in 1854; although, for the most part, their regimes were still built largely around the idea of harsh penal discipline. However, the Elmira Reformatory, opened in 1876 in New York State, pointed the way towards new possibilities in the institutional treatment of offenders. It was designed as a ‘moral sanitarium’ (for 16- to 20-year-old male first offenders) rather than a penitentiary or prison. In contrast to the uniform, unremittingly severe conditions and segregative individualization associated with Victorian adult prisons, at Elmira there were individualized programmes for the prisoners, designed to bring out the propensities to crime that lay hidden in their backgrounds; and education and instruction designed to assist in their postinstitutional readjustment.

In this way, it was anticipated that Elmira’s end product would be different from that of the adult prisons. Whereas the latter hoped to release an exconvict who had now made the choice to be a good citizen, Elmira had in mind the rehabilitated former criminal, now restored to normality. Nonetheless, in England, penal reform only cautiously followed the route more eagerly followed in Europe by the new criminologists of the late nineteenth century. In that country, at least, crime problems, it seemed, were being held in check; statistics showed a declining crime rate. There were still concerns about crime, but these were now concentrated around particular groups of offenders rather than the criminal class as a whole—in particular, habitual, recidivist criminals (for the most part, petty property offenders) now became the focus of criminological discourse and penal reform strategies. This group seemed to be beyond the existing legal and penal framework. They were not insane, according to the very narrow precepts allowed this concept in criminal law; and they were clearly not deterred by the existing penal sanctions, as their propensity to commit more crime on release from their latest prison sentence was thought to clearly demonstrate. It was only in this small space that indeterminate prison sentences began to be introduced in England and similar societies towards the end of the nineteenth century.

Other than this, penal reform in these countries began to move away from the insistence on deterrence in a way that constructed alternative sentences for those either not fully responsible for their actions or not so steeped in criminality that they did not warrant the dramatic step of a prison sentence. During the second half of the nineteenth

Entries A-Z 657

Encyclopedia of nineteenth-century thought 658

century we thus see the emergence of separate procedures for juveniles, the introduction of probation for first offenders, recognition that some forms of criminality (such as habitual drunkenness) were more appropriately dealt with through medical rather than penal responses, and the avoidance of prison for potential fine defaulters by giving them time to pay. Meanwhile, prison conditions were steadily alleviated, with some improvement in conditions. As the Report of the Gladstone Committee stipulated, the purpose of prisons was to make criminals ‘better men and women, both physically and morally, than when they came in’ (1895:12–13). At the formal level at least, the new purposes of prison, alongside the other penal reforms of the period, and the commitment to rehabilitation rather than repression, became the emblems of a modern, rational penal system—and were to provide the framework for most subsequent penal developments for the best part of the twentieth century.

These changes in criminological thought—about the role of the modern state, about free will and responsibility, about remedying social problems and individual deficiencies—were also being reflected in legal theory. As it was, nineteenth-century Gesellschaft law might protect individual rights but it seemed that it was not fulfilling its duties and obligations towards protecting society as legal theorists Geny and Ihering were now beginning to argue it should: the scope of the criminal law should be extended and serve the interests of social defence rather than just adjudicate on matters of guilt and innocence. If penal sanctions could thus incorporate the indeterminate prison sentence to this effect, the criminal law itself was prepared to lessen its insistence on responsibility, with an extension of the defences to it (under certain circumstances), including diminished responsibility, provocation and necessity. In the areas of contract and tort, responsibilities were extended between citizens.

At the same time, the state was beginning to take a greater role in reducing the variety of everyday risks its citizens faced: risks against poverty in old age, against the consequences of unemployment, of poor working conditions. All such risks, around the end of the nineteenth century, could now be reduced through programmes and legislation that provided for compulsory social insurance. Legal theory characterized this emerging pattern of law and social and penal reform as ‘collectivism’. This saw ‘the school of opinion… which favours the intervention of the state, even at some sacrifice of individual freedom, for the purpose of conferring benefits upon the mass of the people’ (Dicey 1906:119). We do not necessarily have to share these Whig assumptions to recognize the importance of the changes in the areas of law, criminology and penal reform that had taken place over the course of the nineteenth century, exemplifying the shift from pre- modern to modern social arrangements.