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date: 01 October 2020

Abstract and Keywords

This chapter discusses the transformation of criminal justice that took place between about 1750 and 1850. After reviewing the leading interpretations of Michel Foucault and John Langbein, it proposes a framework from theirs. The transition to modernity in criminal justice should be seen against the background of a Weberian monopolization of legitimate violence, as Western states claimed the sole authority to inflict punishment, displacing rivals that included nobles, heads of households, and the Church. In the course of monopolization, states underwent a somewhat paradoxical transformation. The secular criminal law that emerged by the middle of the nineteenth century had been Christianized, coming to resemble the historic law of the Church. The “modern” criminal law of the nineteenth century was largely a form of pre-modern Christian law, making use of the historic Church punishment of imprisonment and adopting forms of culpability analysis that had been developed by Church lawyers.

Keywords: modernity, criminal justice, state power, criminal law, punishment, Michel Foucault, imprisonment, John H. Langbein, Catholic Church

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