Colonial Criminal Law and Other Modernities: European Criminal Law in the Nineteenth and Twentieth Centuries
Markus D. Dubber
This chapter reflects on various traditional approaches to the historical study of European criminal law in the nineteenth and twentieth centuries. It examines several ways of naming and framing the subject matter, along with ways of ‘covering’ it along a set of by now fairly well-established narrative paths that generally reflect a quietly reassuring Whiggishness. It then lays out an alternative, two-track, conception of ‘modern’ European criminal legal history. It does this by taking an upside-down—or outside-in—view of the subject, by focusing on an understudied, but fascinating, project of European criminal law: the invention, implementation, and evolution of colonial criminal law.
This chapter aims to study features and development of criminal law in the medieval and modern ages. The emergence, at the end of the eighteenth century, of the state monopoly on punishment, connected with the establishment of the statutory law as an ordering factor, represents a historical turn. Before, criminal law—much more than to the exercise of a right to punish—is related to the problem of determining justice in order to produce a public space substitute for revenge. The chapter, considering this different foundation, analyses the ordering factors structuring the criminal law system. It then focuses on peculiar features of the criminal trial and on key aspects such as the role of the judge, the sanctions regimes, the taxonomy of the crimes, and the regimes of proof. Some cursory remarks, as to how the criminal legal order turns into a system under a state monopoly, serve as a conclusion.
This chapter offers a counter-history of criminal trial verdicts, restoring special verdicts to the story typically told about trial verdicts. According to this typical story, the dominance of the general verdict (‘guilty’ or ‘not guilty’, a determination of both the factual and legal issues at trial) is thought to be both inevitable and right. While special verdicts are now virtually unknown in the English trial process, during the period of the development of the modern criminal trial, they played a greater role in criminal process, functioning as a means by which the seismic changes associated with the appearance of the modern criminal trial were negotiated in the courtroom. Bringing to light the all-but-forgotten past of trial verdicts opens the way to think again about verdicts in the current era, considering the possibilities for the restoration of a meaningful role for special verdicts.
Heikki Pihlajamäki and Mia Korpiola
This chapter focuses on medieval canon law from which modern criminal law developed. It discusses the reform of canon law in the twelfth century, especially the growth of Roman law and the introduction of criminal sanctions. Attention then turns to the concepts of intentionality and individual responsibility, ecclesiastical crimes and punishments, and the procedural amendments that accompanied the changes in substantive criminal law. Consideration is given to the rise of the inquisitorial procedure alongside the traditional adversarial procedure and the statutory theory of proof to replace the old procedure based on oaths and ordeals. It also examines the impact of canonical criminal law on secular law, along with developments in the Reformation period and beyond including the development of criminal procedure. The Catholic Church’s establishment of its own judicial system, the institution of penance that stressed the individual nature of sin, and teachings on necessity, duress, and self-defense are highlighted.