Olof Zillen Beatrice Paolini Lisa Robin Terence Katerynych Daniela Garza The development of penal theories in the 19th century and international organizations

Olof Zillen

Beatrice Paolini

Lisa Robin

Terence Katerynych

Daniela Garza
The development of penal theories in the 19th century and international organizations

Positivist school:

In the late nineteenth century the positivist school of criminology arose . This school defended the idea that criminal behaviour was created from factors that a person could not control. These factors were divided into internal and external factor, internal being biological and psychological and external as sociological. This school sook the understanding of criminal activity through scientific techniques believing that personal and environmental factors reflected as a cause and effect in criminal behaviour.¹

This school emerged in the 19th century when there were significant changes happening in society. One of those changes was capitalism that created a wave of production in europe thus developing a growing class in the society, the working class, with this also rose social and political conflict. Capitalists were the dominant class and they faced opposition with the working class.

Overall in this era there was a presence of class conflict, social problems and an increase in scientific interest and industrial innovation. New ideas were rising such as the evolution of human development, these ideas led to the belief that society was progressing forward and that the understanding of society could be done by a sientific method. The increase of criminal acts in this period led them to believe that the classical punishment policies were not working and that there were other social factors influencing this rise in criminal activity which led to positivism².

Biological positivism

Cesare Lombroso was the main scholar of the positive school with his work "Homo Delinquens".

Lombroso’s theory was very successful and had many followers in Europe. He also founded an academic journal with the help of Ferri and Garofalo, others Italian jurists that supported his ideas.

In his studies Lombroso emphasizes the role of physical and biological factors in the genesis of criminal behavior. For this reason his research is based on anthropometric measurements of prison inmates and is focused on the somatic abnormalities of criminals.

According to Lombroso the “criminal man” is characterized by distinct features interpreted as signs of a biological throwback to a primitive state of evolution. Lombroso argues that the criminal is “an atavistic being who reproduces in his person the ferocious instinct of primitive humanity and the inferior animals”. ³

This theory is dangerous because it affirms that there are particular relationships between the trend to commit a crime and a specific body structure of the criminal. Criminals are distinguished because of their biological characteristics as a kind of inferior and dangerous race against which society would be legitimate to protect itself even by using drastic, authoritarian and inhuman means.

Lombroso's ideas are certainly based on the previous theory developed by Franz Joseph Gall called “phrenology”. According to Gall, human behavior was regulated by twenty-seven different faculties or propensities, each located in a particular part of the brain. He believed that the exterior bone structure of the skull indicated which of these propensities were highly developed and which were atrophied in any particular individual. Three of these propensities could give rise to criminal behavior if they were highly developed (greed lead theft, the instinct of self-defense lead violent fights, carnivorous instinct lead murder).⁴

Lombroso also suffers the influence of Charles Darwin who had written: “with mankind, some of the worst despositions, which occasionally without any assignable cause make their appearance in families, may perhaps be reversions to a savage state, from which we are not removed by very many generations. This views seems indeed recognized in the common expression that such men are the black sheep of the family.”⁵

Lombroso’s suggestions for the punishment of born criminals are quite eclectic and contradictory. On the one hand, he endorsed the death penalty as the best means of eliminating individuals whose criminal behavior was rooted in their biological constitution. On the other hand, he wondered whether the born criminal’s antisocial energies could not be redirected to socially useful purposes (Bloodthirsty individual, for instance, might be encouraged to become soldiers).⁶
Moral statisticians
In the middle of the 19th century Moral Statisticians were interested in criminality. They tried to prove the proximity between human's actions and physics’ laws. The pioneers of this doctrine were a French lawyer André Michel Guerry and a Belgian mathematician Adolphe Quetelet.

In 1827 the French government published official crime statistics. Guerry used them to create three thematic maps of France representing crimes rates according to different social factors (rate of Crimes against people, crimes against property and level of instruction ). From then he tried to explain crime by isolating common factors.

For example, he compared the rates of crime, wealth and poverty. He deduced that this connection was only based on opportunity. There was more property crime in rich area due to a greater amount of wealth. People did not steal because they were poor, but because there were things to steal. As well, even if the education rase had an impact on crime's number, it affected the gravity of crimes too. In fact, educated people seemed to commit more violent crime.

Guerry identified a new theory about the propensity to ward crime. For him, the main variables to identify a criminal were age and sex. A man who was between twenty-one and twenty-five was more likely to commit a crime than an older one or a woman.

The main idea of Guerry and Quetelet was based on the fact that the number of conviction remained constant over the years. They described crime as an inevitable feature of social organization. Quetelet wrote: « The share of prisons, chains, and the scaffold appears fixed with as much probability as the revenues of state. We are able to enumerate in advance how many individuals will stain their hands with the blood of their fellow creatures, how many will be forgers, how many prisoners pretty nearly as one can enumerate in advance the births and deaths which must be take place. »

The second idea was that the Society was responsible for crime. They did not consider crime to be an individual act but a consequence of social factors determined by the society. « The crimes which are annually committed seem to be a necessary result of our social organization [...] society prepares crime, and the guilty are only the instruments by which it is executed ». This theory called free will into question and emphasized the impossibility to reduce the number of crime.

This practice of moral statistics was used later, and is still used today, to improve the analyze the societal origins of crimes.

Sociological positivism

The 19th century was not only a century defined by the development of the natural sciences. It also represented the birth of the modern social sciences. A century of Durkheim, Weber, Pareto and Comte. The sociological school of law gained influence in the 1880’s and 1890’s. It’s key figure is Franz von Liszt and its seminal piece is the Marburg programme.

When Liszt looked at the German Penal Code at the time he thought it was a ineffective tool to deter crime. Firstly because there was an increase in recidivist offenders in Germany. Secondly Liszt didn’t think the purpose of punishment should be retributive justice but rather to protect society from crime.⁷

The social concept of the punishment had been a feature of scholarly debate since around the time of the French Revolution. However the earlier scholars had focused entirely on general prevention and not individual prevention.⁸ Those earlier scholars also emphasized about protecting the individual from the penal system while Liszt emphasizes extending the power of the penal system to deter crime.⁹

A key assumption in Liszt’s understanding of crime is that criminal acts can’t

only explained by biological factors.¹⁰ Crime is to a large extent a consequence of social factors. Liszt existed in the age of the industrial revolution and it’s slums. Thus you can’t explain crime without looking at the conditions of the working class.¹¹As crime becomes a social issue law is not the only tool to be used to stem crime. Social policy and criminal policy are necessary tools to achieve the goals of the penal system. As an example Liszt is one of the first scholars to emphasize the need of handling “At-risk youth”.¹²

As the punishment should focus on individual prevention the punishment should be be shaped after the criminal. Liszt was a proponent of sorting criminals into different categories with different lengths of incarceration.¹³ Essentially the determining factor would be what a menace the perpetrator poses to society. He was also a proponent of giving the judge wide reigns to individualize the punishment.¹⁴
The Role of International Organizations in spreading the modern penal ideas.

The International Association of Penal Law (“IAPL”) is one of the oldest global organizations dedicated to advancing the study and development of penal law theory. It was founded in Paris on March 14, 1924 as a reorganization of the International Union of Penal Law (UIDP), founded in Vienna in 1889. The UIDP was founded by three prominent criminal lawyers: Franz von Liszt, Gerard Van Hamel and Adolphe Prins. The organization held regular congresses and published bulletins on the topics of criminal law, criminal policy, and criminal procedure.

The International Penal and Penitentiary Commission (IPPC) is considered the oldest intergovernmental agency in the correctional field. The IPPC was affiliated with the League of Nations and organized conferences on crime control every five years. Academics from various fields converged on the congresses to engage in lively debate over a broad range of penal law topics, such as the nature of criminality, the goals of penal law, and procedural reform. The commission was ultimately absorbed by the United Nations and changed to its current form as the International Penal and Penitentiary Foundation, which produces studies on crime-prevention, and criminal law reform.

The establishment of these organizations coincided with the explosion of positivist legal theory in the late 19^th century. Lombrosso’s Criminal Man (1876), Ferri’s Criminal Sociology (1892), and Garafolo’s Criminology (1885) presented a powerful challenge to the status quo of penal law. Thus, the studies carried out, and the debates of academics at conferences had immense impact on the proliferation of positivist thought and the other modern critical approaches to criminal law. Different theoretical frameworks in vogue at different periods were reflected in the works of the IAPL. For example, Social Darwinism was advanced as a justification for capital punishment in the debates over corporal punishment, while the concept of Social Defence was invoked in the debates over transportation and severity of criminal punishment generally.

Overall, the international organizations both reflected, and fed into the broader debates going on both in society and in the legal world, eventually leading to reforms of penal systems throughout Europe and a generally more empathetic view towards the treatment of offenders in the contemporary era.

1^ Lurigio, Arthur J., Ph.D. Salem Press Encyclopedia of Science, p.5 (2006)

2^ Rose J. Ayugi, Positivism Criminology (2007)

3^ Cesare Lombroso, L’uomo delinquente (Milan, 1876), quoted in Richard F. Wetzell, Inventing the criminal, a History of German Criminology.

4^ Inventing the Criminal, a History of German Criminology, 1880-1945. Richard F. Wetzell. The University of Carolina press.

5^ Charles Darwin, The Descent of Man and Selection in Relation to Sex (1871), quoted in Richard F. Wetzell, Inventing the criminal, a History of German Criminology.

6^ Inventing the Criminal, a History of German Criminology, 1880-1945. Richard F. Wetzell. The University of Carolina press.

7^ Inventing the Criminal, a History of German Criminology, 1880-1945. Richard F. Wetzell. The University of Carolina press. p. 34

8^ ibid

9^ ibid

10^ f.e. look at Straffrättsvetenskap och kriminalpolitik. Christian Häthen. Lund University press. p. 67 and p. 71

11^ Häthen p. 71

12^ Häthen p. 72

13^ Häthen p. 81

14^ Häthen p. 81