The Theoretical Foundations of Criminology

Place, Time and Context

Jayne Mooney

• Publisher: Routledge
• Year: 2019
• ISBN:
  9781000751192
• Edition: 1
• Topic: Sciences sociales
• Subtopic: Sociologie

To confront the challenges criminologists face today and to satisfactorily critique the theories on which criminology is founded, we need to learn from the past. To do this we must give context to both theorist and theory. Written from a critical perspective, this book brings criminological theory to life. It presents the core theories of criminology as historical and cultural products and theorists as producers of culture located in particular places, writing in specific historical periods and situated in precise intellectual networks and philosophical controversies.

This book illustrates that theory does not arise 'out of the blue' and highlights the importance of understanding how and why ideas emerge at certain points in time, why they gained currency and the influence that they have had. It follows the trajectory of criminology from pre-Enlightenment society through to the present day and the proliferation of criminological thinking. It explores:

• 
  
  

• Setting the Stage for the Emergence of Criminology

• 
  
  

• Classicist Criminology: The Search for Justice, Equality and the Rational 'Man'

• 
  
  

• The Positivist Revolution, Physiognomy, Phrenology and the Science of 'Othering'

• 
  
  

• Chicago School of Sociology: An Explosion of Ideas

• 
  
  

• Developing a Sociological Criminology: Durkheim, Du Bois, Merton and Tannenbaum

• 
  
  

• Feminism: Redressing the Gender Imbalance

• 
  
  

• Confronting the Establishment: The Emergence of Critical Criminology

• 
  
  

• From Theoretical Innovations to Political Engagement

The Theoretical Foundations of Criminology provides an invaluable contribution to the growing conversation about criminology's 'origin story' and the level that this is grounded in the idiosyncrasies of the North Atlantic world and its historical development. This book will be invaluable reading to students and academics engaged in studies of criminology and criminal justice.

Chapter 1

Setting the stage for the emergence of criminology

‘Justice’ and the ancien régime

In order to place the development of modern criminology historically, it is useful to begin with the state of ‘justice’ in much of continental Europe from the fourteenth to mid-eighteenth centuries, the period dubbed the ancien régime by the French revolutionaries.¹ Whilst historical research is fraught with difficulties when it comes to making sense of what actually happened and there is debate on the way that ‘justice’ was delivered during this time, there is nonetheless a great deal of evidence to be found in first-person accounts, letters, newspapers and public records to show that by and large ‘justice’ was arbitrary, dominated by religious bigotry, frequently decided in secret and featured interrogation and punishment techniques that could be excessive and brutal. Indeed, I have chosen to place inverted commas around the word ‘justice’ to problematise its usage when employed in contexts that clearly resulted in the unjust treatment of alleged offenders.

What is significant about this early history is that the resentment that was felt against the way in which ‘justice’ was administered was one of the forces that spurred on the Enlightenment movement; this, in turn, gave rise to the French and American revolutions, the values of which have come to symbolise the modern age. It is in the opposition of Enlightenment thinkers to the ancien régime that we can identify the origins of criminology.² Moreover, this period witnessed the beginning of discourses on ‘human rights’ that remain important to debates on the treatment of those accused and convicted of crimes. Yet the history of criminology is not an easy one, for it is a history of silencing and exclusion. Criminology and criminologists have traditionally glossed over the terrible crimes committed by the state and in the name of colonialism. Slavery is rarely discussed.³ The nomothetic tendencies of the discipline and its resulting quest for generalisations that are independent of nation, space or time have contributed to the erasing of voices at the periphery and especially those from non-Western social contexts (Young, 2011; Walklate, 2016). Moreover, the ‘science’ of criminology has proved a powerful tool in the hands of the state, contributing to the ‘othering’ and repression of historically marginalised people and those who have dared to resist its workings. As Biko Agozino (2014) and others have pointed out, it is highly significant that the discipline of criminology originated in Northern Europe, the centre of colonial power.

But to try to ‘set the stage’, let us consider what was meant by the ancien régime. ‘Ancien’ refers simply to the ‘former’ regime that preceded the French Revolution of 1789. The term was used in a derogatory way to signify what the revolutionaries thought they were bringing to an end (Doyle, 1986). The ancien régime was both a system of government and a form of society permeated by religion (ibid). It was characterised by a monarchy in which the king had absolute power and was seen as appointed by and answerable only to God. As such, the king maintained the God-given right to intervene in all aspects of life – that is, in all political, financial and personal affairs. He was God’s representative on earth and therefore to question him was to question God. Commentators on this period have often held up Louis XIV of France (1638–1715) as the closest example of an absolute monarch. With the monarch at the top, society was then divided along hierarchical lines into three estates: the first estate being the clergy, the second estate the nobility and the third the rest of the population. Privilege was concentrated in the clergy and nobility, who had special status, enjoyed certain legal rights and were exempt from most of the taxes. The third estate were the majority, yet they had comparatively few rights and paid most of the taxes. Where you were placed in the hierarchy was for many people determined by virtue of birth.

The administration of ‘justice’ under the ancien régime was criticised for its inconsistencies. The king, as God’s representative on earth, was above the law. Indeed, his word was regarded as law: as the last king of France, Louis XVI reportedly said when challenged by one of his subjects, ‘It is legal because I wish it’. There was seemingly little rational basis to the notion of ‘justice’: it was an unequal system with an offence against a nobleman being punished more severely than that against a commoner, there was no obvious scale of punishment and the laws governing crime and punishment varied from region to region. As Voltaire, whose work we will turn to in more depth in the next chapter, sardonically reflected on France, ‘a man who travels in this country changes his law almost as often as he changes horses’ (1764, 1901 ed, p. 49). There are, he said, ‘as many laws as there are towns; and even in the same parliament, the maxims of one chamber are not the maxims of another’ (1801, p. lxxvi). Many of the problems were due to the various jurisdictions modifying and enforcing different aspects of the old Roman law (which had been resurrected in the twelfth century), together with the constant additions of new laws in a manner seemingly devoid of system or forethought (Maestro, 1942). As Cesare Beccaria was to despairingly comment,

[S]ome remnants of the laws of an ancient conquering people, which a prince who reigned in Constantinople some 1200 years ago caused to be compiled, mixed up afterwards with Lombard rites and packed in the miscellaneous volumes of private and obscure commentators – these are what form that set of traditional opinions which from a great part of Europe receive nevertheless the name of laws.

(1880 ed, p. 111)

Judicial appointments were for sale, and yet judges had ultimate power because the king had delegated to them the authority that had been bestowed on him by God. Trials were typically secret affairs with the judge, attended only by his clerk, questioning each witness separately. Abuses of the system were, not surprisingly, commonplace. Vulnerable witnesses could easily be pressurised by the judge to give false testimony. Sometimes a trial was not even necessary. In France people could be imprisoned or exiled on the basis of a lettre de cachet: an order – that did not always have to specify a charge – signed by the king, which could be obtained, and not infrequently bought, by a ‘person of influence’. This was typically without the possibility of legal redress. It is estimated that during the reign of Louis XV, between 1715 and 1774, 60,000 lettres de cachet were issued (MacFarlane, 1844).

Box 1.1 Voltaire and la lettre de cachet

In 1726 a lettre de cachet was issued against Voltaire – who was by birth from the bourgeoisie, that is, a wealthier member of the third estate – following a quarrel with a nobleman, Chevalier de Rohan-Chabot. As a result, Voltaire was imprisoned in the Bastille for six months before going into exile in England. This had occurred in response to some uppity banter following which Rohan-Chabot asked of Voltaire, ‘Who is the young man who talks so loud?’ Voltaire cuttingly retorted, ‘He is one who does not carry about a great name, but wins respect for the name he has’ (Morley, 1913, p. 53). Following a beating by Rohan-Chabot’s servants, Voltaire challenged him to a ‘gentlemanly’ duel in a bid to resolve the matter but received instead the lettre de cachet. Such an unpleasant experience underscored for Voltaire that despite being increasingly recognised for his literary talents, social status was what mattered in pre-revolutionary France. To have been born outside of the nobility, to lack a ‘great name’, meant he counted for little in the eyes of the law and was left powerless in the face of accusations from an aristocrat.

Religion ensured that crime was equated with sin. Carl Ludwig von Bar (1916) pointed out in his examination of continental criminal law in this period that the Mosaic Law and the principle of the ‘talio’ (as in ‘an eye for an eye, a tooth for a tooth’) became influential in many jurisdictions. Whilst originally intended to limit excessive punishment, it was interpreted as a law of retribution, ‘the product of a vengeful deity’ (Granucci, 1969, p. 839) and, thus, a divine command. It was applied particularly stringently to offences that were perceived as a direct affront to religion and helped to ensure the criminal law was often harshly and cruelly applied; hence, it was written in the Swedish-Finnish penal codes of the 1500s to 1700s, ‘the legislator shall seek to soften the wrath of the Deity and save the realm from his vengeance by the most severe punishments’ (von Bar, 1916, pp. 295–296). The divine origins of the criminal law ensured there was little in the way of compromise or mitigation (Ganucci, 1969).

The influence of the Church was particularly evident in the persecution of witchcraft and heresy that saw hundreds of thousands of ‘witches’ – three-quarters of whom were women – tortured and executed between the fourteenth and mid-seventeenth centuries. Widely embraced were the Dominican Order’s⁴ theories of witchcraft that were founded on a dualistic conception of the world which, as Nachman Ben-Yehuda describes, involved, ‘a battlefield in which a struggle between the godly sons of light and the satanic sons of darkness was being played out’ (1980, p. 5). Thus, witches were regarded ‘as the exact qualitative opposite of the conception of Christ, and witchcraft as the exact opposite of what was supposed to be the true faith, Christianity’ (ibid). Pope John XXII was the instigator of much of the early hysteria that occurred in the fourteenth century by suggesting the practice of witchcraft was gaining in influence and encouraged inquisitors to seek out and put on trial all sorcerers, enchanters and other heretics (Lea, 1901). There is an extensive literature on this period, much of which has drawn attention to the sheer number of women executed.⁵

Box 1.2 The persecution of ‘witches’ in the time of the ancien régime

Women identified as witches were, certainly at the start of the hysteria, often older women who were seen as non-conformist in the sense of living outside of the traditional family structure. ‘Witches’ may therefore have represented a misplaced fear over the changing position of women in Northern European society. For this was a period that saw growth in the number of unmarried women, the move from a subsistence-level to a cash-based economy that resulted in women entering the labour market, more women involved in prostitution and the use of contraception and infanticide, which brought into question women’s role as mothers (Ben-Yehuda, 1980). At the same time women’s inferior status in comparison to men and lack of political power and organisation made them easy targets for such large-scale persecution (ibid).

Women were often presented as at one with the devil. The infamous Malleus Maleficarum (The Witches’ Hammer), written around 1486 by Heinrich Kramer and James⁶ Sprenger, two members of the Dominican Order, portrays women as naturally more wicked than men and susceptible to the influence of the devil. Women are ‘credulous’, have ‘slippery tongues’, find it easy to deceive and are more carnal, ‘all witchcraft comes from carnal lust, which in women is insatiable’ (1486, 1971 ed, p. 47). Women are either good or bad, there is no in between, and ‘when they are governed by a good spirit, they are most excellent in virtue; but when they are governed by an evil spirit, they indulge [in] the worst possible vices’ (ibid, p. 42). Thus, we speak of witches rather than wizards, ‘and blessed be the Highest who has so far preserved the male sex from so great a crime’ as that of witchcraft (ibid, p. 47). ‘All wickedness’ they argue, ‘is but little to the wickedness of a woman’ (ibid, p. 43). The Malleus Maleficarum aimed to prove not only the existence and menace of witchcraft and Satanism – indeed not to believe in this was a manifestation of heresy – but to function as an authoritative guide for the civil and ecclesiastical courts as to the identification and prosecution of witches. Once apprehended, the ‘witch’ was to be put on trial, stripped of her clothes in case there is some ‘instrument of witchcraft sewn into her clothes; for they often make such instruments, at the instruction of devils’ (ibid, p. 225), horrifically tortured to secure a confession and then it was recommended that she be burnt in order to banish the devil from her body. Ben-Yehuda (1980) credits part of the success of the Malleus Maleficarum with its wide circulation: for the printing press had recently been invented, and it was one of the first books to be printed using this means. There were at least twenty editions published. It was a ‘best seller’, outselling even the Bible.

The German theologian Friedrich von Spee fervently spoke out against both torture and the callous prosecutions of women suspected of being witches, attracting condemnation from political and ecclesiastical authorities. In 1631 his book Cautio Criminalis (Precautions for Prosecutors), published anonymously due to fear of prosecution, exposed the illogicality of using torture to secure confessions, for many ‘are so weak they will state any lie rather than suffer torture’ (p. 74) and that in order to escape the torture, those who are innocent will not only confess but are liable to implicate others who are just as guiltless. He pleaded with the princes to ‘observe with their own eyes the savagery of tortures that now flourish everywhere’ (ibid, p. 29). Von Spee had spent much of his early priesthood in some of the worst areas affected by the witch hunts and, as part of his duties, ministered to women suspected of witchcraft. Indeed, when asked by Johann Philipp von Schönborn, who was to become archbishop of Mainz, why his hair had turned grey so early, von Spee retorted,

[G]rief has turned my hair white, grief on account of the witches whom I have accompanied to the stake … Not only grief at such inhuman punishments, but grief at the malice and stupidity of the whole procedure of the witch hunts raging throughout Franconia and Westphalia.

(Knowles, 2007)

Let us pause for a moment to reflect on the utter humiliation, despair, terror and extreme physical pain that these women endured. And although there is debate over the level of which it was endorsed by the Catholic Church, there is no doubt that the Malleus Maleficarum was influential and provided the rationale for the torture and murder of hundreds of thousands of women in Europe.⁷ This has been described as nothing less than ‘gendercide’, for neither before this time nor since have women been so extensively and selectively the focus for killing (see Jones, 2006; gendercidewatch.com). Yet as Randeep Singh Chauhan reminds us, while the witch hunts gradually ceased during the 1700s, with ‘the patriarchs of history claim(ing) that women would no longer face such gross structural persecution’, on an ideological level, the legacy of sexism and the ‘othering’ of women who were seen as nonconformist continued (2005, p. 5).⁸ In criminology this was to be reflected, for example, in the works of Cesare Lombroso, Otto Pollak and Hans Eysenck.

Further Reading:

• Ben-Yehuda, N. (1980) ‘The European witch craze of the 14th to 17th centuries: A sociologist’s perspective’, American Journal of Sociology, Vol. 86, No. 1, pp. 1–31.

Admittedly, the persecution of witches began to wane as opposition to the social order represented by the ancien régime grew, there were still troubling instances. Voltaire (1801) writes of an old woman...