History of Crime and Punishment in Europe 17c 18c

History of Crime and Punishment in Europe 17C-18C

This paper traces the history crime and punishment in Europe. It looks at the influences of that time the social and philosophical movements and how they affected the whole evolution of treatment of crime and the thought behind punishment. The paper details about the neoclassical period its forbearers and how they regarded the issue of crime and punishment and their assumptions regarding the problem.

Crime is as old as civilization itself and where you find groups of people, you will consistently find some shape of criminal activity. You will also find punishment. The criminal has always been seen as undermining the values and, even, the very fabric of the society she or he deceives. Accordingly, those found out or found culpable have often been dealt with unsympathetically. Again, the Jewish Mythology will spring to the Western mind with its mantra of an eye for an eye etc. Very often, to the contemporary western mind, the harshness of the penalty was far in excess of the gravity of the original offence. However, the prehistoric, medieval or even early modern people of western society did not like the insights into human behavior which modern society claims for itself. To them, the criminal was, quite simply, a threat to the order, which was essential for the very existence of their society. As society developed and the great cities of the world began to develop and swell so too did the criminal alliance grow and expand.

Age of Enlightenment

The age of 'Reason' and 'Enlightenment' was ushered with the people believing that the reasoning of men could free them of their troubles and lead them to peace, sanctuary, a good government and ideal society. Reason would ensure the progress of humanity and entire society.

The European Enlightenment developed in part due to an active group of French thinkers who thrived in the middle of the eighteenth century: the philosophes. This group was a heterogeneous mix of people who track a variety of intellectual interests: scientific, mechanical, literary, philosophical, and sociological. They were united by a few common themes: an unwavering uncertainty in the perfectibility of human beings, a fierce desire to disperse erroneous systems of thought (such as religion) and a dedication to systematizing the range of intellectual disciplines.

The rallying cry for the philosophes was the perception of progress. By mastering both natural sciences and human sciences, humanity could harness the natural world for its own benefit and learn to live peacefully with one another. This was the ultimate goal, for the philosophes, of rational and intentional progress.

The philosophes movement was not restricted to France, but soon spilled over into other European countries. In England, the movement was possessor by David Hume, Adam Smith, and Edward Gibbon. It was natural that the English would take to the new ideas, since the French philosophes were so heavily prejudiced by English thought: Voltaire by English empiricism and Montesquieu by English government.

We can call the eighteenth century the age of the enlightenment because it was both a peak and a new beginning. Fresh currents of contemplation were wearing down institutionalized traditions. New ideas and new approaches to old institutions were setting the stage for great revolutions to come.

These enlightened philosophes made profligate claims, but there was more to them than merely negations and disinfectants. It was primarily a French movement because French culture dominated Europe and because their ideas were uttered in the environment of the Parisian salon. Therefore, it was a middle-class movement. They nevertheless labored for man in general, for humanity.

Besides Jean-Jacques Rousseau, the most significant of the French philosophes was Francois Marie Arouet or, as he signed his books, Voltaire. Voltaire concentrated on two precise philosophical projects. First, he untiringly worked to introduce empiricism, as it was adept by the English, into French intellectual life. Second, he persisted in proselytizing for religious tolerance; in fact, most of his works that we still read today had as there theme religious tolerance. Obviously, the feudal edifice was crumbling, but there was no real antagonism between the bourgeoisie and the aristocracy yet. One can detect the bourgeoisie besieged for freedom from state regulations and for liberty of commercial activity. It is also evident that a wave of prosperity brought a greater degree of self-confidence to the bourgeoisie. Great fortunes were made in every town. Mercantilism was loosening its hold on the economy. By 1750, the reading public came into existence because of increasing literacy. However, the philosophes lived a precarious life. They never knew whether they would be imprisoned or courted. Nevertheless, they assumed the air of an army on the march.

From the 17th century, the philosophes inherited the rationalism of Descartes. However, the desire of natural science alchemized into the Enlightenment. Newton had discovered a fundamental cosmic law that was susceptible to mathematical proof and applicable to the minutest object as well as to the universe as a whole. Maupertuis and Voltaire made Newton common property by 1750. John Locke had denied instinctive ideas and derived all knowledge, opinions and behavior from sense experience. Condillac carried this to its conclusion by insisting that even awareness was transformed sensation.

Therefore, the traditional anthropocentric view of the universe laid in ruins and with it the anthropomorphic conception of God. Hence, Montesquieu, Voltaire, the encyclopedists and physiocrats created the fusion of social science which was based on past progress. All of this was done in an atmosphere of religious, political and economic controversy. Biblical criticism came from prosperous Holland and backward Spain, first posited precious metals as the source of wealth, then commerce, and then agricultural production (as developed by the physiocrats).

In all this controversy, social science was foundation to yield evidence -- the critical and historical method of Pierre Bayle. Exotic travel literature had its effect as well. It supported the positivist, experimental mentality of the 18th century. It brought the atmosphere of the "noble savage" into prominence. There was a moral sense in natural man. Rousseau and the encyclopedists succumbed to this idea. Nevertheless, that was not the case with Montesquieu and Voltaire. By 1750, the social sciences had already become inductive, historical, anthropological, comparative, and critical.

There was great faith in the instrument of reason rather than mere accretion of knowledge. Doctrinal substance was not as vital as overall philosophy. We need to keep this in mind if we want to understand the Enlightenment. It was not so much Descartes "reason" but rather Newton's laws -- not abstraction and definition, but observation and experience were points of departure. What placed the stamp on the Enlightenment was this analytical method of Newtonian physics applied to the entire field of contemplation and acquaintance. Order and regularity came from the analysis of observed facts. Lessing said that the real power of reason lay not in the possession but in the acquisition of truth. Therefore, pure analysis was applied to psychological and social processes. From here on out the doctrine of historical and sociological determinism (the application of the principle of causality to social science) was usually accepted. Many historicists have scorned this naive scientific positivism. By facile dogmatism, the philosophes frequently ignored their own method.

Their new ideal of knowledge was simply a further development of 17th century logic and science. However, there was a new emphasis on The particular rather than the general

Observable facts rather than principles

Experience rather than rational speculation.

In Italy, the most influential adherent of the philosophe movement was Cesare Beccaria (1738-1794), whose book; On Crimes and Punishments (1764) radically changed the European outlook on justice and the penal system. Beccaria fight that judicial punishment should not be used for punishment, but rather should be used to protect society. Incarceration of the criminal prevented the criminal from committing other crimes, and closely watching and training incarcerated criminals taught them moral and social values that would avoid them from committing crimes once they were released. All other forms of punishment, including physical and capital punishment, were excessive; understand that Beccaria wrote this at a time when most serious crimes were capital crimes and that executions were a common public sight. Beccaria's book entirely changed the face of European society: forty years after it was written.

None of the philosophes engaged in speculative philosophy or abstract thinking (very much); they were primarily concerned with the betterment of society and human beings so their focus was devastatingly practical. This concern was focused on reforming individual human beings and on outdated human institutions and belief systems

The philosophes did not determine natural rights theory, but they made it the foundation of the ethical and social gospel. They establish natural rights into practical politics. They gave natural rights the dynamic force that exposed its explosive energy in the French Revolution. However, their argument moved gradually away from metaphysics toward empiricism -- away from reason toward experience. Liberty of the person, security of property and freedom of discussion were less rooted in conceptual reason than in commonsense views of fundamental human needs, impulses and inclinations. In spite of the utopianism of Rousseau, the rest had a sense of reality. Reason is still primary, but it is not rebellious or bloodthirsty. Only in society could man realize his full potential. They believed in the social function of knowledge. Except for Rousseau, none of the philosophes agitated for a radical transformation of society. All of them, like Voltaire, protected enlightened absolutism.

Montesquieu published his Spirit of the Laws in 1748. He expressed here real detestation of despotism, clericalism and slavery. Being a member of the petit noblesse, he called for an "intermediary corps" and fundamental laws to temper the monarchy. His former colleague magistrates called it restitution of the ancient constitution. Therefore, he influenced both the aristocratic reactionaries who wanted to revitalize feudal estates and parliaments, and the honest liberals who idealized English constitutionalism with its principle of severance of powers, the basis of modern constitution making. This book was the first study in ideal sociological patterns. He advocated the examination of a variety of constitutional forms to discover the republic and its inner law. A network of interacting forces, if altered, affects the equilibrium of the whole structure. He is the founder of the typology of constitutional model.

The Encyclopedists had a more dynamic formation. Nevertheless, they also believed in metaphysical norms to which societies must conform. Hence natural religion, natural morality, natural rights, and natural economies should prevail. They also popularized the idea of progress, stated more clearly later by Turgot and Condorcet. They used the Leibnitz idea of continuity. The Physiocrats shared with the philosophes a rationalist, hedonist and utilitarian outlook. Natural rights were thought to be compulsory for economic progress. They were opposed to the rivalry and jealousies of mercantilism. They reduced all social science to economics. Quesnay started with an examination of the agricultural situation in France. He wanted protection for agriculture and promoted the Third Estate. However, agriculture came first and liberalism second. He thought there should be synchronization between positive laws and natural laws and that this harmony could be established via reason. The monarch was to be a "legal despot." This vague utopian constitutionalism was a regressive step from the ideas of Montesquieu.

Philosophy of Crime and Punishment

If we look into history we shall find the laws which are or ought to be, conventions between men in a state of freedom. The most part, the work of the passions of a few or the consequences of a fortuitous or temporary inevitability; not dictated by a cool examiner of human nature, who knew how to collect in one point the actions of a multitude and had this only [sole] end in view, the greatest happiness of the greatest number. Happy are those few nations, who have not waited until the slow sequence of human vicissitudes should, from the extremity of evil, produce a transition to good; but, by prudent laws have facilitated the progress from one to the other! Moreover, how great are the obligations due from mankind to that philosopher, who from the obscurity of his closet, had the valor to scatter amongst the multitude, the seeds of useful truths, so long unfruitful!

If we look into history we shall find that laws, which are, or ought to be, caucus between men in a state of freedom, have been, for the most part the work of the passions of a few. The consequences of a fortuitous or temporary necessity; not dictated by a cool examiner of human nature, who knew how to collect in one point the actions of a multitude, and had this only end in view, the greatest happiness of the greatest number.

The end of punishment, therefore, was no other than to prevent the criminal from doing further injury to society, and to prevent others from committing the like offence. Such punishments, therefore, and such a mode of exact them, had to be chosen, that would make the strongest and most lasting impressions on the minds of others, with the least torment to the body of the criminal.

The torture of a criminal during the course of his trial is a cruelty consecrated by custom in most nations. It is used with an intent either to make him confess his crime. To explain some inconsistency into which he had been led during his examination, or discover his accomplices, or for some kind of metaphysical and incomprehensible purgation of infamy, or, finally, in order to discover other crimes of which he is not accused, but of which he may be guilty.

No man can be judged a criminal until he be found guilty; nor can society take from him the public protection until it have been proved that he has violated the conditions on which it was granted. What right, then, but that of power, can authorize the punishment of a citizen so long as there remains any doubt of his guilt. This quandary is frequent. Either he is guilty, or not guilty. If guilty, he should only suffer the punishment intended by the laws, and torture becomes useless, as his confession is unnecessary. If he were not guilty, you torture the innocent; for, in the eye of the law, every man is innocent whose crime has not been verified.

Crimes are more effectually vetoed by the certainty than the severity of punishment.

The punishment of death is pernicious to society, from the example of barbarity it affords. If the passions, or the essential of war, have taught men to shed the blood of their fellow creatures, the laws, which are proposed to moderate the ferocity of mankind, should not increase it by examples of barbarity, the more horrible as this punishment is usually attended with formal pageantry. Is it not ridiculous, that the laws, which detest and punish homicide, should, in order to prevent murder, publicly commit murder themselves?

It was thought better to prevent crimes than to punish them. This is the primary principle of good legislation, which is the art of conducting men to the maximum of happiness, and to the minimum of misery, if we may apply this mathematical expression to the good and evil of life.

The fear of the laws is salutary, but the fear of men was a fruitful and incurable source of crimes

However, the cruelty of punishments and the irregularity of proceeding in criminal cases, so principal a part of the legislation and so much neglected throughout Europe, had hardly ever been called in question

A theory evolved which had some assumptions

Assumptions:

All persons being by nature self-seeking are liable to commit crime. There was a consensus on the desirability of protecting private property, personal welfare and current distributions (power, life chances, etc.).

Free will is a psychological reality, people freely enter a social contract with the state to preserve peace and the consensus. Pleasure-Pain motivation.

The laws represent a crystallization of the moral consensus.

All people are rational.

The individual is responsible for his/her actions and is equal.

Derived assumptions:

Lawbreaking behavior is the result of the irrational acts of certain individuals, who, due to their personal inadequacies are unable to uphold the contract with the society or the state.

Social contract theorists maintain special access to the criteria needed to judge the rationality of an act. These criteria are based on the measures of utility developed by the theorists themselves.

Assumptions about punishment:

Punishment is to deter the individual from violating the interests of others. (It is the option of the state to execute this punishment since the individual freely formed the society.)

Punishments must be proportional to the interests violated by the crime. Focus is thus on the act. Punishment should not be in excess of this nor should it be used for reformation as this would encroach on the rights of the sanctity of the individual.

There should be as little law as possible, and its implementation should be delineated by due process.

Punishment should seek to reward useful activity and punish damaging activity.