Histories of Crime and Criminal Justice and the Historical Analysis of Criminal Law
Abstract and Keywords
This essay reflects on the relationship between the history of crime, the history of criminal justice, and the history of criminal law. It suggests an account of the historical-comparative analysis of criminal law that locates it within the general project of critical analysis of law and police on the one hand, and a rich multidisciplinary historiography of crime on the other hand. There are as many histories of crime as there concepts of crime. As a social phenomenon, social historians are interested; law may figure into these histories as one factor in constructing the social environment of crime. Social histories ought not to preclude other perspectives, such as moral, cultural, and political histories. Ideally, histories of crime will come from various perspectives, but with clearly defined tools of analysis, and will complement one another to generate a nuanced and contextual kind of historical inquiry.
The basic idea driving the history of criminal law as a form of historical analysis of law is simple: the history of criminal law is a legal history of crime, that is, a history of crime as a legal construct or concept. This is not to say that it is (only) a conceptual history, but merely that it is a historical analysis of crime from the perspective of law. Law, however, is itself recognized as (also) a conception, and a conception of state power in particular, that is not simply reducible to a set of practices or phenomena. In this sense, the history of criminal law as a legal history of crime may be contrasted with the social history of crime as a history of crime from the perspective of criminology, and the political (or, more precisely, though also more awkwardly, the policial) history of crime as a history from the perspective of criminal justice. The point here is not to lay out a disciplinary taxonomy that distinguishes and relates criminal law, criminology, and criminal justice in a particular way, but rather to differentiate among various ways of doing the history of crime.
More specifically, the legal history of crime qua historical analysis of criminal law is an instance of legal history as critical analysis of criminal law, which in turn is one aspect of the critical analysis of law in general (Dubber 2015). Under this account, the historical analysis of law appears as a form of critical analysis of law insofar as it turns on the normativity of the modern idea of law, which implies claims about the legitimacy of its use by the state as a mode of governance that invites, or at least makes possible, critique. The enterprise of historical analysis of law is, in other words, historical itself; (p. 598) it is historically situated insofar as it operates with a particular (“modern”) conception of law as legitimatory, the origins of which can be traced back to the Enlightenment’s comprehensive critical project (in which the precise location of the Enlightenment moment, in general and in particular systems of government, can be left open). Of course, the historical analysis of law in general, and of criminal law in particular, is not limited to the past two centuries (or whenever one chooses to locate the Enlightenment moment); in fact, it may well be that the critical analysis of law predates the eighteenth century, though the specific normative claims (in form and in substance) made by the invocation of law as a mode of governance presumably would be different, depending on the conception of law at stake.
Whatever the scope of the critical moment in the history, and therefore the historiography, of law turns out to be, it is important to acknowledge that it is just that, a moment in time—and, as we’ll see, systemic space—rather than an eternal universal point of reference that can be invoked or a permanent perspective that can be assumed. The critical analysis of law, in other words, must be historicized; not only is law historically contingent, or at least specific, but so is its critical purchase.
Take, for instance, the project of “critical legal history” (or histories; see Gordon 1984), which has made important contributions to disturbing ossified assumptions about the basic constituents of legal history and, in fact, of legal thought and scholarship, but emerges as itself insufficiently critical of its own critical perspective. If critical legal studies in general—including critical legal history as its historiographical wing—is to be regarded as more than a general exercise in the “exposure” of the outcome indeterminacy of some norms held up by some people as outcome determinative—in other words, if critical legal studies is to be seen, and see itself, as a mode of legal studies—then the contingency of its critical stance toward its critical object, namely, law and legal norms, might become visible. Especially since critical legal studies generally distinguishes itself from scholarly projects, including critical projects and critical political projects in particular, that proceed from some analytic framework or approach (e.g., Marxism), and as a result bravely comes face to face with its critical object, notably legal norms of one form or another (standards, rules) without the aid, or crutches, of some prefabricated analytic system, instead dealing directly with the legal norms held out, consciously or not, to resolve legal matters by those state officials empowered with their generation, interpretation, application, and enforcement (really, when it comes down to it, judges), critical legal studies is distinctively and insistently legal. The conception of law underlying its critical enterprise, however, is limited to a specific, modern, post-Enlightenment conception of law in which law makes claims to legitimacy in the first place and at least attempts (or pretends to attempt), however foolishly, simple-mindedly, and transparently futilely, to justify itself, or rather to justify the exercise of state power undertaken in its name.
In other words, the conception of law that is not only targeted by, but also frames, critical legal studies is what one might call “liberal,” in the historical and systemically spatial sense of being characteristic of “modern” Western political and legal thought familiar since roughly the late eighteenth century (or earlier, depending on when and (p. 599) where one locates the origin of this Enlightenment conception of law). This raises the question of what pre-Enlightenment critical legal history might look like, or what distinguishes critical legal history from critical legal theory, that is, what makes it a historical exercise, rather than a critical one. In other words, is precritical critical legal history possible? What would a critical legal history of medieval law or Roman law look like? Shifting the focus not in historical length, but in comparative breadth, what would a critical legal history of Chinese law look like?
This isn’t the place to explore these questions in greater detail. Raising them is enough to point out the historical (and spatial) scope of the enterprise of critical legal history. Whether—and if so, how—that enterprise might be expanded in either direction is another question.
Unlike critical legal history, the historical analysis of law as critical analysis of law is acutely aware of the limitations its operative conception of law places on, and uses to shape, its critical project. It proceeds from a historically situated account of law as a mode of governance that is seen as emerging and remaining in tension with another fundamental mode of governance, police (Dubber 2005; but see Zedner & Loader 2007). The distinction between law and police reflects, and in fact is motivated by, the former’s claim to—or, if you prefer, the pretense of—legitimacy that the latter is portrayed as lacking. This “modern” or “liberal” conception of law is the mode of governance that defines the law state (the Rechtsstaat, or the state under the rule of law) in critical contradistinction to the police state (the Polizeistaat). From the perspective of this critical conception of law the police state was alegitimate: it did not recognize the need for its own legitimation. State action in the police state requires no justification; it is not subject to general norms noncompliance with which would undermine its legitimacy, that is, its raison d’être. The police state has a raison, the raison d’état (or Staatsraison), but its raison d’être is its very existence. It serves no external (worldly) purpose that might undercut its claim to power, and to existence in the first place. This is not to say that the sovereign, as the head of the police state, which he governs as a “great family,” in Rousseau’s words (1755), or as “a well-governed family,” in Blackstone’s (1769), may not pursue an ideal of prudence or wisdom, or even see himself as the state’s first public servant (as Friedrich II of Prussia did). He may decide to consider the counsel of experts in “police science” to obtain advice on how to more effectively attain whatever goals he might set for himself and, within this framework of aims, establish a more rational, systematic, and comprehensive state apparatus for the manifestation of his sovereign will.
Since police is alegitimate, at least in this account of the distinction between law and police as modes of governance, a critical policial history or a critical analysis of police is impossible. A critical history of state power might take a broader approach and explore, for instance, the classification of certain exercises of state power as manifesting one mode of governance rather than another, in particular—but not only—when the classification is undertaken by the state itself. For instance, critical history (or critical analysis of law at any given time) might question the common assertion that a particular state action complies with “the rule of law” or reflects the ever more (p. 600) complete implementation of the idea of the Rechtsstaat. It might seek to “expose” a purported exercise of the law power as an exercise of the state’s police power instead, at least in substance, if not in form. But within the realm of policial analysis, the question of legitimacy does not arise—again, given the analytic framework set up by the invention of modern law as the critical counterpoint to police. Without a pretense of legitimacy, its absence could not be exposed by critique.
I. History of Criminal Law as Critical Analysis of Law
The history of criminal law occupies a central place in the historical analysis of law as an aspect of the critical analysis of law. Both conceptually and historically, the primacy of the critique of the state’s penal power reflects the intrusive and facially illegitimate nature of that power. The state’s penal power is intimately connected to the state’s sovereignty, so much so that it may be—and has been throughout long stretches of history—impossible to imagine one without the other. It is precisely this apparent impossibility against which the critical analysis of state power as law directs its first, most insistent, most pointed, and yet also most revolutionary challenge: How can state action that does violence to the very persons whose capacity for self-government it manifests be legitimate? How can state action that violates the very autonomy of persons whose autonomous consent legitimates its very existence be legitimate? From the perspective of modern law, then, the state action most obviously and directly connected to the idea of sovereignty—and therefore statehood and state power—itself is the very state action both in greatest need of legitimation and most apparently lacking it.
The famous account of the 1757 public execution and torture of “Damiens the regicide” at the beginning of Foucault’s Discipline and Punish (1977) is just that, an account. It describes, in considerable detail, the way in which the French state publicly and awesomely displayed its sovereign power through the mutilation and humiliation of someone who had committed the greatest offense in a penal police regime: the murder of the king-father of the great family of the state. Regicide is merely one form—if an extreme one—of laesa majestas, or of treason in the “common law world.” In a police state, the paradigmatic offense is, literally, an offense against the sovereign. This was the case in eighteenth-century France and England, and it is still the case, explicitly, in the criminal law of the United States, as we will see shortly.
It is important to recognize at this point that the conception of penal power reflected in the Damiens account is not limited to France, or the “civil law world” (though it is certainly the case that Foucault’s analysis focuses on French penal power in particular). The very same conception underlies the English offense of treason, which goes back at least to the Treason Act of 1351—and most likely farther, since that statute was merely intended (or said to be intended) to clarify the law of treason at the time.
(p. 601) It is important to note here, incidentally, that this reference to “law” does not imply a claim to legitimacy or some reference to the principle of legality or some such thing. At the time, and until the Enlightenment moment, whenever and wherever located, law did not carry the connotation of a legitimacy claim; after all, the very notion of police had not yet established itself and was still centuries from functioning as modern law’s alegitimate straw man. In fact, the reference to law carried a different connotation at the time, one that appears clearly in the notion of a “common law,” that is, a law that was common insofar as it applied to the members of the emerging royal household, all of whom were subject to its patriarchal power under the king’s peace. In the Treason Act, Edward III set out a common law of treason in statutory form, a royal law of treason that covered the entire realm. It cemented the inferior status of the very lords who had sought the clarification; they had meant to limit Edward’s discretionary use of the offense of constructive treason to assert jurisdiction in cases that otherwise would have been within the local jurisdiction of some lord who would have treated the offense as a felony, resulting in the falling of the offender’s property to him rather than to the king, the victim of treason. Treason here was the violation of the bond between subject and king (laesa majestas) as opposed to that between serf and (local) lord (felonia) (Pollock & Maitland 1898).
The term “law,” after all, did not acquire its sharp critical edge, its distinctive normative pretension, until it was put to critical use in the Enlightenment’s comprehensive challenge to established modes of thinking, acting, and governing. Law became the mode of governance that signaled the beginning of a new project of state government, one in which the state embarked on a mission to justify its power to its objects, ironically by recognizing them as subjects and thereby rethinking away the very challenge of state power it had formulated for the first time. Before the Enlightenment, premodern law was happily used as synonymous with government, rule, power, police, justice, and, what is particularly interesting, peace. The sovereign, conceived as a macro householder governing his household, incorporated human—and other—resources within his peace, which expanded beyond the realm of the traditional household (each of which had a householder and his own peace) to the peace of the land, the realm, and the empire.
For this reason, it is difficult to imagine a critical history of premodern law, unless one also develops a different conception of critique, one that does not see the Enlightenment as the age of critique, as a formative critical moment that launched a new enterprise in human thought and action. This is not to say that a critical history of law could not draw on premodern political and “legal” history, if only for setting the broader framework within which the modern history of law operates. For instance, it might turn out that the distinction, and tension, between law and police itself can be seen within the (longue durée) context of the relationship between autonomy and heteronomy as modes of governance reaching back to the beginnings of Western political thought and action in classical Athens, where the paradigmatically heteronomous sphere of the household (oikos) stood in sharp (or, in the case of Plato, not quite so sharp) contrast to the paradigm of autonomy (agora). A similar contrast characterized (p. 602) Roman government, with the familia on one side, and the forum, the senate, and the res publica on the other. The collapse of democracy and republicanism in Greece and Rome ushered in a period of heteronomous government that extended from the Middle Ages until the Enlightenment, which rediscovered autonomous government, but in a radically different way: as the self-government of all persons as such, rather than the public self-government of sui juris householders who were private sovereigns at home. The Enlightenment took aim at the very core of this for centuries dominant idea of government as household, or patriarchal, governance, made most explicit and rationalized in the police science of the police state, the study of “political economy,” that is, the government of the state as a family; the transfer of the radically heteronomous mode of governing (nomos) the traditional oikos to that “great family,” the state; and the publicization of a once-distinctively private mode of governance, now renamed “political economy” or, simply, police.
Expanding the scope of critical analysis of law beyond the Enlightenment moment, then, also brings to light the household as a central site of governance throughout Western political and legal history (not to mention the central role of traditional economics in political thought). The police power is the householder’s essentially limitless discretionary power over his household, and the police state is the institutionalization—and, alongside the science of police, also the rationalization—of that power at the level of state government. The police power thus is not merely the straw man of modern law, but also itself the modern manifestation of a fundamental conception of government, stretching from the family to the corporation (including the church) to the state, a conception of government that for centuries was so dominant as to be self-evident and synonymous with the very idea of government, requiring not justification, but mere description, triggering not critique, but awe.
Which brings us back to Foucault and poor Damiens, punished for having committed the household offense par excellence, the ultimate act of disobedience against the householder, and, in this case, the householder of householders, the macro householder who has incorporated once-equal households into his great Rousseauian household by reducing their householders to mere constituents of his household, transforming their original jurisdiction into delegated power. This distinction—within a shared conception of governing as householding—between the royal householder and other, micro, householders is beautifully and ironically reflected in Edward III’s abovementioned Treason Act, which does define treason (“at the Request of the Lords and of the Commons”), but in almost comically broad and vague strokes (to “compass or imagine” the death of the king), which appear all the broader and vaguer when compared to those used to define little treason (petit treason), which requires the actual killing of the lord of a micro household. This ultimate violation of the micro householder’s peace, this ultimate act of familial disobedience, remained a separate offense from ordinary homicide in Anglo-American criminal law until the nineteenth century.
Gustav Radbruch, in fact, located “the origin of criminal law” in household discipline, more specifically, in the essentially heteronomous and hierarchical discipline meted out by the householder upon the unfree members of his household, that is, (p. 603) members of his household who were not themselves heads of their own household and, as such, capable only of being governed, but not of governing, whether themselves or others (Radbruch 1950; see also Sellin 1976; on Radbruch, see Hildebrandt 2014). Radbruch contrasted internal criminal law and external international law, which arose out of the interaction among heads of household, rather than between householder and household. Although Radbruch focused on Germanic law, he might have extended the scope of his historical essay beyond the Middle Ages to ancient Athens and Rome, where he would have found the same distinction between heteronomy and autonomy, and between internal and external relations between householder and household on the one hand, and among householders on the other hand. There, too, he would have found a distinction between modes of punishment: between corporal penal discipline meted out against the unfree and noncorporal punishment applied to citizens. The distinction between heteronomy and autonomy would appear in the procedural aspect of the exercise of penal power, as indicated, for instance, by the role of juries in facilitating the self-application of norms (if only indirectly, through one’s peers) and even the opportunity for self-infliction (both of which are illustrated in the case against Socrates).
In the end, Radbruch’s essay on the history of criminal law remains oddly premodern in its failure to mark the significance of the invention of a new, modern, concept of law. In fact, it is less a legal history of crime or a history of crime from a legal perspective, than a social, or sociological, history of crime (or, in fact, of punishment). Within the framework of the distinction between law and police, it appears as a policial history of crime, rather than a legal one. Oddly, the history of criminal law is distinguished from that of international law, a field of law whose legal—as opposed to political or diplomatic—credentials have been contested since its very beginning. At the same time, since Radbruch’s account begins with medieval Germanic tribes whose penal practices were marked by stark heteronomy and hierarchy within each tribal household, the autonomous penal practices in Greek and Roman law remain obscured. As a result, penality origin appears to lie in heteronomy and patriarchy, rather than in practices and institutions that, from the start, displayed a tension between heteronomous and autonomous penal power.
Insofar as Radbruch operates within a premodern, precritical, conception of law that remains constant throughout, his account does not amount to a historical analysis of law as critical analysis of law. This is not to say, however, that his account might not prove useful to a critical history of criminal law as law. Radbruch’s essay provides a rich and provocative account of the history of penality since the Middle Ages that powerfully exposes its policial elements. As a result, it nicely documents the deep historical and conceptual roots of the orthodox policial conception of penal power onto which the modern conception of law turned its critical gaze as the most obvious instance of state power that required legitimation, rather than manifestation, however awesome.
If Radbruch’s history of criminal law remains precritical in the sense of premodern, Foucault’s account is consciously modern and critical in a different sense than the critical analysis of criminal law through history. Foucault, unlike Radbruch, is interested in (p. 604) marking the appearance of a new conception of law, but that conception differs from the one underlying the project of critical analysis of law outlined here. Foucault’s critique is not normative, or, more precisely, it does not seize upon the claim to legitimacy that is central to, and distinctive and new about, the conception of law driving critical analysis of law. Note, for instance, that the description of Damiens’s public punishment is followed by another description, or rather a recitation, of the “rules for the House of young prisoners in Paris” eighty years later. This juxtaposition illustrates the shift from public to private, and from physical to psychic punishment, from body to mind, not from a manifestation of the palpable reality of sovereign power whose existence requires, and in fact allows, no justification to a penal system that opens itself up to a fundamental critique of its legitimacy in conception and execution. In fact, one might see the shift from open violence to concealed treatment precisely as a move to obscure and normalize the very exercise of state power, whose intrusive intensity more than any other demands critical scrutiny of its legitimacy. Here Foucault’s account is critical, but in the sense of revealing a shift in perspective and conception marked not only by difference, but also by continuity with the preceding state of affairs. It is not critical in the sense of challenging the new liberal penal law state’s claims to legitimacy.
Foucault’s account also differs from Radbruch’s in its time frame. Foucault is interested in a specific moment in the history of penality, and in a specific aspect of that moment: the transition from public physical spectacle to private psychological control, which in his view occurred during the short century between Damiens’s execution and the posting of the rules for juvenile delinquents. Radbruch’s scope of analysis is far wider, and yet not as wide as that of a longue durée critical analysis of law that seeks the foundations of the modes of governance that (may) continue to shape state power in general, and state penal power in particular. From this broader, and longer, perspective, in fact, Foucault’s account of penal history may be more self-consciously modern than Radbruch’s, but it remains firmly within the orthodox conception of state power that the modern conception subjected to critical analysis. Put another way, Foucault’s analysis can be seen as making—or at least as illustrating—precisely this point, namely, that the supposed radical shift in the conception of state power, penal and otherwise, brought about by the Enlightenment with the help of a modern, critical, ideal of law in fact remained an internal adjustment within the policial realm from one type of human resource control (public and physical) to another (private and psychological). The Enlightenment, in this view, did not mark a paradigm shift, but an intra-paradigmatic development from, in traditional terms, “general deterrence” to “treatment.” Another long century later, one might detect a similar intra-paradigmatic move, which also was—at the time—presented as a radical paradigm shift, namely, the move during the so-called war on crime from one side of the paradigm of “peno-correctional treatment” (rehabilitation) to another (incapacitation) (Dubber 2002).
Manipulating not only the time frame, but also the (systemic) space frame, that is, supplementing historical with comparative critical analysis, reveals that the policial conception of state power that can be seen as underlying Radbruch’s and Foucault’s accounts of the history of penality is not limited to “civil law” countries such as Germany (p. 605) and France, but is also prevalent in “common law” countries such as the United Kingdom and the United States, even if—at least in the former—the word “police” remained taboo (as being typically “French”), with some notable exceptions, including not only Blackstone, but also Bentham, Patrick Colquhoun, and Adam Smith. English legal history instead prefers the older (and quainter) term “peace,” which captures the core of the idea of police as a mode of governance without the unwelcome connotations of the state as a qualitatively distinct macro household (Pollock 1885). The micro householder’s peace (or mund) becomes the state householder’s police.
Nothing better illustrates the significance of the police- or peace-based conception of state power in the Anglo-American system of government than the state’s penal power. The fundamental conception of crime throughout the history of English law is that of an offense against the king’s peace. The ultimate, and paradigmatic, victim of crime was the king. A crime represented an offense against the king’s sovereignty, an act of disobedience or deviation from the rules of proper behavior in a “well-ordered” household. Homicide, even se defendendo, required a royal pardon because it constituted an offense against the king by depriving him of a human resource altogether. Maiming, too, offended the king by diminishing the value of a human resource, in this case, by rendering him incapable of military service.
In American law, the state’s penal power has been closely associated with its power to police and, therefore, with the very idea of sovereign power. During the revolutionary period, which is generally thought of as a time of fundamental critique of every aspect of state power, the power to punish went notably unchallenged (Dubber 2007). Instead, the English conception of crime as an essential attribute of sovereignty was accepted without question and simply adapted to the new political environment: what once was an offense against the king’s peace was now an offense against the new sovereign, be it the people, the public, or—simply—the state, or even several states at once. The U.S. Supreme Court affirmed as recently as the mid-twentieth century that an act that violates a criminal norm of two states constitutes an offense against both and therefore may be subject to prosecution in either, or both, under the so-called dual sovereignty exception to the constitutional prohibition against double jeopardy:
The dual sovereignty doctrine is founded on the common law conception of crime as an offense against the sovereignty of the government. When a defendant in a single act violates the “peace and dignity” of two sovereigns by breaking the laws of each, he has committed two distinct “offences.” As the Court explained in Moore v. Illinois, 14 How. 13, 19 (1852), “[a]n offence, in its legal signification, means the transgression of a law.” Consequently, when the same act transgresses the laws of two sovereigns, “it cannot be truly averred that the offender has been twice punished for the same offence; but only that by one act he has committed two offences, for each of which he is justly punishable.”
(Heath v. Alabama, 474 U.S. 82 )
In the American federalist compromise, states retained the police power and ceded only those limited powers specifically enumerated in the federal Constitution. The power to punish, if it attracted any attention (if not critique), was simply identified as (p. 606) an obvious instance of the power to police. The power to police, however, as the manifestation of sovereignty, was essentially unlimited in scope, discretionary in nature, and defined by its indefinability. To limit the state’s power to punish would have meant limiting its police power and therefore, ultimately, its sovereignty.
There was never a critical moment in the history of American penality (Dubber 2007). The revolutionary generation took the state’s power to punish for granted: while the state’s penal authority remained unquestioned, attention instead focused on who in the new federalist system would wield it. As a central aspect of the police power, and therefore of independent, as opposed to derivative or delegated, sovereignty, the penal power remained with the states, while the federal government (as opposed to a full-fledged state at the national level) was denied a direct and general penal power; whatever penal power it might have instead had to derive from the general powers ceded to it by the states and enumerated in the Constitution. The penal power of the federal government (which, again, was not a national state) was limited not only in origin and scope, but also institutionally; unlike state courts, federal courts were said to lack the power to generate new offenses under the common law misdemeanor doctrine. Any federal penal norms had to be defined by the legislature; they had to be statutory, not common, law.
Limiting federal criminal law to statutory law did more than limit the class of its producers; it also relegated it to secondary status, given the minor interstitial role statutory norms had played during the history of English criminal law up to that point, as legislative efforts at criminal lawmaking had long been met with hostility, if not obstruction, by the judiciary, which used interpretive techniques such as the rule of strict construction and various presumptions to limit their influence.
It is also worth noting, in the present context, that the limitation of U.S. federal criminal law to statutory law reveals that the police power was not thought to be limited to the legislature, as is often supposed. It is precisely because judges, too, wielded the sovereign power to police, that is, the power to maintain the “police” in the sense of peace or good order, that denying federal judges the power to recognize new common law (as opposed to legislative, statutory) offenses was important; otherwise, the federal government, through its judges, could make an end run around the constraints placed on its legislators and indirectly assert and expand a general power to police that it had been denied directly.
Of course, this sub rosa exercise of a federal police power happened just the same, though not through the courts. Instead, the federal legislature took an ever more expansive view of the enumerated powers it had been granted in the federal constitutional compromise, with, in the end, remarkably little resistance from the court charged with assessing the constitutionality of its actions, the (federal) Supreme Court. The power to regulate commerce proved particularly useful in this regard, as federal criminal law underwent a dramatic expansion, especially beginning in the early twentieth century.
It is worth noting, to again expand the breadth of the historical analysis comparatively, that the same focus on secondary questions of institutional competence (or, if you like, jurisdiction) rather than on the fundamental question of legitimacy—on the (p. 607) who, rather than the whether or the why—is also reflected in British colonial legal and political history. For instance, the British North America Act of 1867 (now the Constitution Act) delegates royal sovereignty to a colony, notably the power of “peace, order, and good government,” aspects of which it assigns to the federal government and to the provinces, thus assigning Canadian constitutional law forevermore the tedious—and subsidiary—task of classifying which aspects are federal and which provincial, rather than considering their underlying legitimation. Sovereignty just is, and the only question is to whom its various fragments are assigned. In the British North America Act’s list of fragments of sovereignty also appears the “Criminal Law” power, which is assigned to the federal government. At the same time, however, the Canadian provinces have the power to impose “Punishment by Fine, Penalty, or Imprisonment for enforcing any Law of the Province made in relation to any Matter coming within any of the Classes of Subjects enumerated in this Section.” The apparent tension between these clauses is resolved in terms of the proper distribution of power in the Canadian federalist system, with little, if any, concern about—or reference to—the nature or legitimation of penal power, no matter who wields it.
That the British North America Act, a delegation of English royal sovereignty to a colony, does not probe, or even elucidate, the foundations of state penal power is perhaps not surprising, given the internally administrative nature of the exercise and the unquestioned English sovereignty-based conception of penal power in particular. That the legitimation of the state’s most intrusive power would have gone similarly unchallenged during the revolutionary period in the United States, which lavished such close attention on the legitimacy of other state powers, notably the power of taxation, is more remarkable. Leaving aside the Federalist Papers, which—like the British North America Act—focus to a great extent on the distribution, not the justification, of state power, the most promising effort to critically rethink penal power in light of revolutionary ideas, notably the idea of self-government as the lynchpin of legitimacy, is Thomas Jefferson’s 1779 Virginia criminal law bill, drafted in the course of the comprehensive revision of Virginia law undertaken by Jefferson and a handful of others in the wake of the signing of the Declaration of Independence and Jefferson’s return to Virginia (Jefferson 1779).
Aside from a promising preamble, however, Jefferson’s bill manifests a startling lack of interest in, and knowledge of, its subject matter, which Jefferson incidentally only picked up after George Mason, who had originally been assigned the topic of criminal law, dropped out of the endeavor. Even the preamble, though more thoughtful than the body of the bill, does not itself reflect a great deal of original thought; its promise derives from the sort of references to Beccarian ideas that were de rigueur at that time for anyone addressing the question of crime and punishment. Ironically, just a few years earlier, Blackstone, whom Jefferson detested for what he saw as a lack of the sort of common law humility he thought Coke personified, had adorned his discussion of criminal law in the fourth volume of his Commentaries on the Laws of England with bon mots from the then recently published Of Crimes and Punishments in much the same way (Stern 2014). Also like Jefferson, despite the references to Beccaria, Blackstone never challenged the fundamental “common law” conception of crime as an offense against (p. 608) the sovereign’s “peace and dignity.” Indeed, Jefferson went out of his way to celebrate medieval criminal law, complete with extensive quotations from Anglo-Saxon dooms (in the original language) and pseudo-Cokean orthography (going back through the manuscript to change the spelling of “forfeit” to “forfiet”) and marginalia. In the end, Jefferson spent more time on the criminal law than on any of the other subjects that he covered in the revision effort—not because he found the subject particularly important or complex, but because it gave him the opportunity to practice his celebrated penmanship, copying and recopying the bill to produce what even a sympathetic biographer could do no better than to describe as an “extraordinarily beautiful document” (“The penmanship is beautifully clear, and no other document that Jefferson ever drew better exhibits his artistry as a literary draftsman”; Malone 1948, pp. 269–70).
But perhaps the failure during the revolutionary period to recognize, and to address, the challenge of state penality in a political system grounded in the idea of the self-governing person merely postponed a fundamental critique of penality until a moment that is often cited as a second foundational moment in American political history: the Civil War and its aftermath, and, in particular, the civil law amendments to the U.S. Constitution (not to mention Lincoln’s Gettysburg Address). This was not so, however. Roughly contemporaneous with the passage of the British North America Act north of the border, the American conception of penality remained firmly entrenched in the traditional English view of crime as an offense against sovereignty, rather than a violation of the rights of another person. The treatment of criminal offenders no more raised questions of legitimacy than it had almost a century before. Instead, criminal offenders remained outside the discourse of legitimacy and constitutional rights, even as slaves were brought within the American legal and political project, at least on paper, with the Thirteenth Amendment’s abolition of slavery and involuntary servitude, “except as a punishment for crime.” At the same time, prisoners were classified as rightless slaves of the state (Ruffin v. Commonwealth, 62 Va. 790 ).
II. Histories of Crime and Histories of Law
In the remainder of this essay, I would like to return to the more general methodological issues raised in the introduction. One point that I think is worth stressing is that the legal history of crime, that is, the history of criminal law qua law, also needs a history of law; what’s more, insofar as law is also an idea, and in fact an ideal that is framed, and employed, as a reason—and, importantly, a justification—for state action, the history of criminal law also needs a theory of law, located in historical context and subject to change (even if that theory happens to make claims to universality, temporal or otherwise). To avoid unhelpful anachronism, a critical analysis of criminal law must enunciate and deploy the (or at least a) conception of law at a given point in time. (This (p. 609) is not to say that the conscious attempt to apply an anachronistic conception of law may not elucidate interesting differences among regimes of law, as an exercise of internal comparative historiography, i.e., within a given system of government. However, the results of this deliberate exercise in comparing the incommensurable should not be confused with the critical analysis of law over time.) There likely will be any number of conceptions of law circulating in a particular historical moment, or period, and critical analysis of law from the perspective of a specific conception of law will also remain open to the charge not only that it is anachronistic but also that it is insignificant or less significant than it is held out to be, or that it is uninteresting or misleading for some other reason.
Still, the point remains that the legal historian—as a historical analyst of law—should take care to enunciate the conception of law driving his or her critical analysis of the invocation, and exercise, of law as a mode of governance at a particular historical moment, rather than to take law as a silent constant (or, if you prefer, a Holmesian brooding omnipresence across space and time).
It might be useful, then, to think of the history of criminal law as two interconnected but also separate histories: the history of crime and the history of law. In the history of criminal law, neither of its constituents, crime and law, remains static. If one thinks of the history of criminal law as a legal history of crime, that is, as a history of crime from a legal perspective, it is important to specify just what concept of law one has in mind at any given moment. It is obvious that the legal history of crime would be sensitive to the historical situatedness of its object; after all, a history of a static phenomenon would be very short: it would be a description. The historical contingency of law in a history of criminal law is more easily forgotten. And yet the analytic perspective requires as much attention as the object of analysis, not only across time but also at any given moment. It makes no more sense to subject “crime” in the fourteenth century to historical analysis in terms of a post-Enlightenment conception of “law” than to undertake a legal historical analysis of modern crime in terms of a modern conception of law that remains unspecified. For instance, the historical analysis of criminal law exemplified in this essay is a legal historical analysis of crime in terms of a modern conception of law as grounded in the principle of autonomy, which I take to be one (common) version of what is often called a “liberal” conception of law or a conception of law characteristic of “Western democratic societies.”
There are as many histories of crime as there are conceptions of crime. As a social phenomenon, crime might attract the attention of social historians, who may generate more or less nuanced and temporally and spatially focused antiquarian accounts of attitudes toward, and conceptualizations of, crime and “criminality” in a given social milieu at a given time and in a given place, or, more dynamically, may trace the evolution of these attitudes and conceptualizations over time. Law may figure in these social histories, but it may figure mainly as one—and not necessarily a particularly important—factor in the construction of the social environment of crime, often as a means of exclusion or perhaps of oppression, depending on one’s view of the significance of central, perhaps even state, power or one’s general view of the role of class—or (p. 610) race—conflict in social life and history. There is, of course, no reason why social histories of crime should take this approach; one might even think that sophisticated social histories of crime would take into account the significance of law as a social phenomenon, or certainly as a phenomenon worthy of careful study, at any given antiquarian moment and across time.
Perhaps most important, social histories of crime are histories of crime as a social phenomenon; they do not preclude other histories of crime from other perspectives. There are many histories of crime, and each history would do well to place itself in context, either by itself considering and incorporating alternative histories or, less ambitiously, by acknowledging their existence and contribution to the multidisciplinary project of the historiography of crime.
For instance, consider a moral history of crime, that is, a history of crime as a moral phenomenon or concept (depending on your view of morality). Assuming a conception of morality that does not simply regard it as another mode of social classification—or control—a moral history of crime might concern itself with such questions as the connection between morality and criminality both in the abstract and in particular, that is, whether such a connection exists and, if so, what it consists of, again at a given time and place or across time. A moral history of crime might investigate, for instance, whether—at a particular moment and place in history, or from one moment to another—immoral behavior was thought to bear any relation to criminal behavior, and, if so, whether that relationship was thought to be more or less direct, perhaps even essential, or merely incidental, and whether there was, or could be, behavior that qualified as criminal, but not as immoral, or vice versa.
Similarly, a religious (or theological) history of crime would seek to shed light on its object from the perspective of its relation to religious beliefs, again at one point or across time. Here, as in the case of a moral history of crime, one might consider the conception of the criminal, that is, someone who commits a crime, or whose characteristics are revealed through its commission. Is crime merely the manifestation of the criminal’s immoral or un-Christian or “evil” character? How have changes in religious beliefs, practices, and institutions affected the conception of crime (and criminals)? Of course, this inquiry might also be expanded comparatively, as an exercise in the study of comparative religion.
A cultural history of crime might consider crime as a cultural phenomenon, straddling the line between a social science- and a humanities-based historical analysis of crime. Here crime appears as an aesthetic concept, perhaps as manifested in literary or musical or even architectural representations or images, that allows the historian to analyze crime’s static or dynamic historical meaning, role, or function. Consider, for instance, the common reference to the figure of the panopticon as an architectural representation of a particular conception of punishment, or, more generally speaking, of state processing and sanctioning of crime, or rather those who commit it, or, yet more generally still, of a fundamental conception of state power beyond the penal sphere (or, if you like, governmentality).
(p. 611) The much-invoked panopticon in fact illustrates two basic features of historiographies of crime that are not limited to the architectural history of crime: the attempt to access the meaning of crime through an analysis of its punishment, which parallels the analysis of those who are seen to commit it, and, more broadly, through an analysis of state action in response, or with regard, to it. Histories of crime, then, are often histories of crime (and criminals) and (its or their) punishment. In fact, one might go further and suggest that this must be so, unless it is possible to conceive of crime independently of its punishment, perhaps as just another indicator of social deviance or marker of communal exclusion.
The closer one sees the connection between crime and punishment, between crime and the threatened or actual response to it, the further one moves from the social to the political end of the perspectival spectrum. A political history of crime, then, might regard crime from a statal (or, more ambiguously and more commonly in Anglo-American thought, a “governmental”) perspective, exploring the conception and construction of crime within a given power dynamic. A political history of crime might, for instance, trace the evolution of conceptions of crime within a familial (or private) context to a political (or public) context, from the oikos to the polis, from the familia to the forum. From a political perspective, the state’s, or the sovereign’s, or the householder’s response to crime would reflect its salience, as illustrated dramatically in Foucault’s reproduction of the description of the elaborate punishment for regicide (i.e., the ultimate form of patricide).
The critical analysis of state penality framed by the distinction—and interrelation—between law and police as modes of governance is thus only one possible project within which a historical-comparative analysis of criminal law and of criminal police can be located. In the end, it matters little whether a particular history of crime is pursued under one disciplinary banner or another, be it law, criminology, criminal justice, or something else. Ideally, histories of crime from various perspectives, with different but clearly identified and motivated tools of analysis and critique, will complement each other to generate a wide, varied, nuanced, and contextual field of historical inquiry.
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