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Punishment and Social Control in Historical Perspectivefree

Punishment and Social Control in Historical Perspectivefree

  • Michele PifferiMichele PifferiUniversity of Ferrara

Summary

Punishment has historically functioned as a key factor of social control. At different times, its mechanisms, techniques, and purposes have varied significantly, changing the authority and legitimacy of those who have sought to shape and govern a social order. The sociological notion of social control elaborated at the beginning of the 20th century refers to multiple elements that cannot simply be reduced to law, criminal law in particular. However, especially after the revisionist turn of the 1970s, the idea of social control as a coercive response to deviant behaviors through penal and institutionalized mechanisms has made inroads into research on the history of criminal justice. At first, the origins and development of prisons in late modernity as models of punishment in place of medieval corporal chastisements were scrutinized. The penal shift from the body to the soul, beneath its rhetoric of rationalization and humanization, was driven by conscious projects for controlling and disciplining a changing society by means of institutions of confinement. Although this interpretation was occasionally criticized, it contributed to the development of a critical historical analysis of criminal law in which the notion of social control can be profitably applied to the study of different periods and features of the penal apparatus. A first example is the age of medieval ius commune (12th–16th centuries), when emergent sovereign entities characterizing the pluralistic political scenario before the formations of modern states extensively resorted to a strategic use of criminal law to impose their hegemonic powers. A second case is penal modernism. In the last decades of the 19th century, when state monopolies of violence were undisputed and imprisonment was largely imposed, criminological positivism brought about a rethinking of the rationale of punishment based on the idea of social defense, which also implied a reconceptualization of criminal law as a means of social control.

Subjects

  • History and Politics
  • Politics, Law, Judiciary

Introduction: Historical Variants of Criminal Justice as an Instrument of Social Control

The notion of social control was elaborated and widely discussed by sociologists at the beginning of the 20th century as a conceptual tool to describe and understand the formation of social order and its function (Gurvitch, 1945). Its meaning varied historically (Innes, 2003, pp. 15–31) and affected different disciplines. According to Roscoe Pound (1942, pp. 20, 24–25), “in the modern world law has become the paramount agency of social control” and “today social control is primarily the function of the state and is exercised through law.” Although this account overemphasizes the role of the law, it has the merit of clearly framing two points that were deeply investigated in the 1970s, namely, the crucial combination of growing state power and its exploitation of penal mechanisms as tools of social control. The revisionist turn in the historiography of crime and deviance (Costa, 1974; Foucault, 1975; Ignatieff, 1978; Melossi & Pavarini, 1977; Rothman, 1980) undertook a critical analysis of the history of criminal law and punishment, reinterpreting the penal transformations of the mid-17th to mid-18th centuries. The origins of imprisonment as a paradigmatic sentence, abolitionist movements, and penitentiary reforms, for example, were interpreted in terms of social control and of the disciplining strategies of bourgeois elites to govern a state rather than progressive and humanitarian reforms. Later criticisms and ongoing refinements notwithstanding (Finzsch, 1996; Ignatieff, 1981; Johnston, 2008; Philips, 1985; Rothman, 1985; Spierenburg, 1996), the critical methodological approach conclusively showed the connection between the formation of penal systems and its political purposes and the link between legal rules and social models of citizenship and deviance. Different visions of social control have corresponded to different ideologies and led to different historical explanations of the late 18th-century changes in penal and penological ideas (Cohen, 1985, 1992).

In the 1990s, criminal justice historians profitably extended the concept of social control to the medieval and early modern periods (Hanawalt & Wallace, 1998; Härter, 1999a; Schilling, 1999). Although prestate legal orders were based on a plurality of sources and their juridical systems rested on interactions of multiple authorities, normative powers, and jurisdictions—formal as well as informal—criminal justice was “the primary instrument of social control” (Härter, 1999b, p. 39). Cohen’s (1985, p. 3) general definition of social control,

organized responses to crime, delinquency and allied forms of deviant and/or socially problematic behaviour which are actually conceived of as such, whether in the reactive sense (after the putative act has taken place or the actor been identified) or in the proactive sense (to prevent the act)

can be fruitfully applied to past periods. This article analyzes the elaborations of penal theories, the functions of punishment, and the mechanisms of criminal justice as instruments of social control in two different historical contexts: the European ius commune (12th–16th centuries) and the rise of criminological positivism (late 19th century to the 1930s).

The Formation of a Public Criminal Justice in Medieval Europe

The Late Middle Ages were characterized by a pluralistic legal order, with a multilayered system of coexisting legal sources that were differently enforced (both general, such as canon law and ius commune based on interpretations of Roman law; and special, with regard to a specific territory, such as city statutes or local customs, a specific personal quality, such as the lex mercatoria, or a peculiar condition, such as feudal law). A lack or weakness of central powers claiming to hold a monopoly on the production and application of law led to the formation of a society in which sovereignty was fragmented and mainly expressed through the entitlement of jurisdictional prerogatives (Costa, 2002; Grossi, 2010, pp. 1–38). In the 13th century the field of criminal justice underwent two major changes: first, the shift from a negotiated approach of settling disputes to a hegemonic idea of penal justice, conceived as both a duty and a prerogative of the public authorities (Rousseaux, 1996; Sbriccoli, 2009a). The formation of territorial entities that exerted public powers (communes, city states, principalities, monarchies, etc.) entailed a consciousness of the need to use a penal apparatus as a means to strengthen any governing authority and to control deviance by defining crimes, prosecuting offenders and dangerous subjects, and imposing public sentences. The application and execution of punishment, in particular, was meant to be the requisite compensation to a community and its ruler (whether an individual authority or a collegial body), which was different from and additional to any private reparations to victims or their families (Sbriccoli, 2009b). The second change concerns the cultural renaissance of legal culture, which began in the late 11th century: the foundation of universities in many European cities, the study and interpretations of Roman law and canon law, the refinement of legal concepts, and the definitions of new institutions and procedures by jurists impacted the development of a more rational and sophisticated penal theory. Law scholars started writing treatises and legal opinions on criminal law and, specifically, on criminal procedure, significantly contributing to the development of principles, concepts, rules, and interpretative customs regarding the purpose, justification, and application of the power to punish (Pifferi, 2012). The vast circulation of practicae criminales, tractatus de maleficiis, consilia criminalia, and commentaria on parts of Roman and canon law concerning penal problems provided public authorities with learned arguments and notions to build the ideology of public interest (utilitas publica) as the foundation for the power to punish in the name of a community (Sbriccoli, 2009c). The social-control function of this “publicization process” can be analyzed with regard to the formation of inquisitorial procedures, jurists’ definitions of crimes, and conceptions of the purpose for punishment.

Social Control Through Inquisitorial Procedure and the Definitions of Crimes

Late medieval jurists formulated many theories and opinions that contributed to justifying the exploitation of penal instruments as tools of social control. Unequal and corporate medieval society had to be governed and safeguarded through exemplary punishments and targeted pardons as well as through careful resorts to judicial discretion to make penal interventions more flexible and adjustable to offenders’ and victims’ different social conditions (Meccarelli, 2018). Unquestionable, however, was the growing publicization of criminal law, namely, its instrumentalization by public powers who sought recognition of their supremacy over citizens, imposing civic as well as moral values by means of penal repression (Vallerani, 2012). A great contribution to the configuration of medieval criminal law came from canon law and theology (Mansferrer, 2019; Pihlajamäki & Korpiola, 2014; Whitman, 2008). The conception of the inquisitorial system, for instance, largely extends from canonical doctrine: this procedural method, originally conceived by the church as an exception to more effectively prosecute heretics, was promptly extended during the 13th century to almost all criminal trials (both lay and religious). The inquisitio ex officio granted a judge, who represented public power, a much wider discretion and broader prerogative than the accusatorial process to preserve public peace by prosecuting and punishing offenders.

The principle according to which ne delicta remaneant impunita (crimes must not be unpunished), first formulated by Pope Innocent III, soon became the rationale of a penal system that was oriented to discover the truth at any cost, exaggerating the position of the judge and nearly nullifying defendants’ rights (Fraher, 1984; Landau, 2012; Sbriccoli, 2009c, pp. 65–66). Procedural rules were effective tools of social control: their flexibility allowed judges (who also played the role of prosecutors) to prosecute any forms of deviance that were perceived by governing elites as the most dangerous to the security of a community and the preservation of public order, such as heresy, homicide, counterfeiting, rape, carrying weapons without permission, or political crimes (crimina laesae maiestatis). Both the definition of such offenses and their prosecutions through the inquisitorial method were used during the Late Middle Ages by the representatives of public powers to distinguish moral from immoral, permitted from prohibited, and legal from illegal behaviors. In the 16th century, a doctrinal effort to formulate crimes more precisely by defining and describing their constituent elements led to a broader inclusion within public resolutions of conflicts, whose settlements were previously left to private agreements, compensations, or vendettas where neither a public court nor a public procedure came into play (Rousseaux, 1999). Each component of a crime’s definition was carefully considered to clearly identify the appropriate sphere of penal intervention and to articulate a hierarchy of values on which harmonious social coexistence rested. Tiberio Deciani’s conception of abduction in his 16th-century Tractatus criminalis (1590, p. 206) is an example of the social-control implications of any (apparently purely theoretical) legal definition: the crime of abduction is committed violently or with deception against an honest woman who should be unwillingly taken from one place to another with the intent of knowing her carnally.1 The emphasis on a woman’s honesty reflects the idea that the value safeguarded by the law is her family’s reputation rather than the woman’s freedom and autonomy: in a patriarchal society grounded on rules of honor and prejudices, the most important interest deserving protection by a penal sanction is the preservation of a family’s good name against any possible scandal or infamy. Punitive mechanisms are established not only to restrain conducts that are perceived to be dangerous but also to impose a certain vision of morality and familiar relationships (Cazzetta, 1999; Pifferi, 2006, pp. 393–404). In a culture whose boundaries between sin and crime were still blurred, the criminal law apparatus operated as the most efficient instrument to defend the community’s sacred values. As the Spanish jurist Alfonso de Castro (1568, p. 1) maintained, penal laws could be compared to the defensive walls of a city: they constituted its strongest defense, preserved honest citizens’ peace, and prevented enemies from entering.2

The Many Purposes of Punishment

Medieval jurists did not philosophically discuss the purpose of punishment or theoretically elaborate on its foundations. Until the late 16th century, any approach to criminal justice’s problems was mainly analytical and casuistic. However, in the salient texts, there are brief references that reveal a multifunctional theory of punishment: as instruments of public justice and social control, penal sanctions could be used for deterrence, retribution, correction, prevention, or salvation according to the offences’ circumstances, the characteristics of its subjects, and the variable political opportunities. Generally, any threat of punishment provided by different legal sources was aimed at deterrence. If deterrence failed, punishment’s execution had to intimidate other potential criminals by showing the public power’s capacity to identify and sanction any law transgressor. Corporal punishment, often a death penalty, was meant to serve as a warning for the entire population.3 Therefore, such punishment had to be executed in a public space and reproduce theatrical rituals so that by attending this ceremony of justice citizens could be educated to comply with rules. This kind of punitive spectacle, however, was more effective when it was a rare occurrence: only a few death sentences were executed, whereas the vast majority of condemned offenders sought post-judgement agreements with authorities, asking for a pardon in exchange for money or other services. Such discretion when deciding whether and to whom a pardon should be granted reinforced the possibility for hegemonic uses of criminal justice to consolidate political power.

Intimidation was not the only goal of punishment. As Alberto da Gandino (a judge in different communes and author of the 1286 Tractatus de maleficiis) put it, the essence of punishment was retribution (1926, p. 209).4 Retributivism implied an emphasis on free will (Claro, 1586, p. 399: “regulariter in poenis criminalibus nunquam potest quis puniri corporaliter, nisi dolus interveniat” [as a rule, in criminal sentences nobody can be corporally punished if there is no malice]): via a doctrinal refinement, the subjective element of a crime, either dolus (malice) or culpa (negligence), became an essential condition for punishment (Engelmann, 1895; Sorice, 2018). This interrelation between retribution and mens rea helped legitimize the public right to punish: any penal intervention was intended as a just reaction to a voluntary and blameworthy violation of law. Individual responsibility was additionally burdened with the conviction that any pain for an earthly penalty would alleviate suffering in the afterlife. The medieval iconography of justice represented the theme of punishment as atonement of (even) spiritual culpability: for example, an illustration of a printed edition of the Constitutio criminalis bambergensis—a criminal law act promulgated in 1507 by the bishop and ruler of the city-state of Bamberg in Germany—depicts a convict being accompanied to a scaffold by a procession of citizens that is led by a cleric, who comforts the offender, prays with him, and assures him that his patience while tolerating his punishment’s pain will foster his salvation (Bambergische Peinliche Halßgerichtßordnung, 1580, p. 29). Finally, in addition to deterrence and retribution, some sources (e.g., Tiraqueau, 1587, p. 302) refer to correction as one of the purposes of punishment.

The legal discourse on the multiple aims of punishment offered public justice a flexible tool for social control. Any execution of penalties could be used to control, prevent, or repress illegal or simply deviant behavior: the connection between worldly justice and divine judgement provided the imposition of corporal punishment with religious legitimacy and made any punitive power significantly stronger and unchallengeable.

Criminological Positivism and Social Control

Beginning in the 1870s, increasing criminological positivism led to a reconsideration of some fundamentals of criminal law. Penal modernism was an international (mostly Western) movement that was deeply influenced by the conviction that new sciences, such as psychiatry, psychology, anthropology, craniometry, and sociology, should lead to a revision of the concepts of crime, punishment, and delinquency (Garland, 2017). Spread through international congresses and associations (e.g., the International Union of Penal Law, founded in 1889, and the International Congresses of Criminal Anthropology, first held in 1886) and influenced by leading scholars, such as Cesare Lombroso, Franz von Liszt, Enrico Ferri, and Adolphe Prins, criminological positivism had two main themes at the core of its reformist agenda: the individualization of punishment and social defense. Both implied a new vision of social control.

Individualization of Punishment and Social Defense

The idea of individualization was related to shifting attention from offense to offender. According to this new approach, crime was a consequence of the criminal’s deviant personality, the result of biological and hereditary deficiencies (Lombroso) or of negative environmental circumstances (Ferri, Liszt). Rather than purely volitional and based on free will, any offense was determined by different factors that shaped an individual’s behavior: a crime was a symptom of the bad character, social threat, and delinquent inclination of an offender who needed to be reformed if possible or neutralized if deemed incorrigible. Criminals, therefore, had to be classified into different categories (first offenders and recidivists, or, according to Ferri’s more elaborated classification, criminally insane, born criminals, habitual delinquents, criminals through passion, or occasional criminals), which corresponded to different forms of punishment. The principles of equality—that same offenses should be punished with same punishments—and proportionality—that penalties’ severity be proportioned to the gravity of the defendant’s criminal conduct—gave way to a sentence that was individualized, i.e., tailored to the offender’s personality, adjusted to his or her temibility (Garofalo, 1880, p. 54) and rehabilitation likelihood. Social defense, as argued by the Italian positivist Eugenio Florian in the Dictionary of Criminology (1943, p. 259), “fully coincides with social interest: this is the only rationale and the unique foundation of criminal law. On this basis, criminal law radically changed its nature: the principle of social defense transformed it in theory and in practice.” Whereas penal liberalism, from Beccaria to the more sophisticated and abstract theories of the 19th century, had centered on the protection of individual rights from a state and its public officials’ abuses in reaction to late-medieval misuses of justice, criminological positivism now sought a new balance between individual safeguards, even those of the accused or convicted, and the protection of the society from criminals (Pifferi, 2016). Criminal law was no longer considered a cluster of rules and limitations on public powers to defend an indicted (or even convicted) individual, as a victim of the state, but as a key apparatus for protecting social security from dangerous criminals (Ferri, 1917, p. 19; Pound, 1930, pp. 111–112; Prins, 1910, pp. 139–140).

Extended Penal Control

Even though the positivists’ proposals were not fully implemented (Pifferi, 2022), they provided a theoretical legitimation for conceiving and shaping criminal law in terms of social control. The priority of prevention over retribution and the conviction that punishment (its type and duration) should aim to prevent further misdeeds by dangerous individuals, rather than being proportional to the responsibility of the offender, brought about an extension of penal control. Three examples effectively demonstrate this. First, flexible and vague criteria to assess the temibility of an individual were used to target deviant behaviors and criminalize conducts of an unclear or disputed severity (e.g., in the case of idlers, vagrants, and the mentally ill). Moreover, by assuming that a dangerousness’ prognosis was justification for punishment, some scholars argued that there was no need to wait for the commission of a crime before applying a penal measure if someone was already considered dangerous, whether or not they were actually responsible for an offense. The 1933 Spanish Ley de vagos e maleantes provided for the punishment of dangerous subjects, whose characteristics were “the ordinary abhorrence of work as well as the parasitic life at the expense of the labour of others,” only “on the basis of antisocial and immoral behaviours” (Jiménez de Asúa, 1933). Accordingly, for the first time, the idea of penalty without crime was implemented, and the potential of the new theories in terms of extended penal/social control (Martín, 2009, pp. 919–935) as well as their contrast with the liberal principle of legality were clearly revealed. Second, the adoption of the indeterminate sentencing system in the United States at the turn of the 20th century, paralleled by preventive detention in the United Kingdom and the dual-track system (punishment followed by measures of security) in many continental legal systems (e.g., Norway in 1902, Italy in 1930, Belgium in 1930), made any decision on the length of custody dependent upon wide administrative (or semijudicial) discretion, which was driven by very uncertain and unpredictable criteria (Glueck & Glueck, 1929). This method turned out to be an extremely flexible instrument to use penal measures to control targeted deviants (whether ethnic minorities or political opponents). Third, the rehabilitative ideal was a key component of penal modernism. The purpose of punishment, it was claimed, could no longer be public vengeance but had to be the social reintegration of an offender (especially a juvenile one). However, from the very beginning of criminological positivism, it was clear that this humanitarian argument was neither absolute nor undisputable. The dark side of such rehabilitation was the neutralization or elimination of those offenders who were labelled abnormal, unreformable, incorrigible, or born criminals, namely, those who, for biological and organic reasons or due to rooted habits, were considered insensible to any kind of treatment (Marri, 1897; Warner, 1899). As Garland (1995, p. 188) put it, “the politics of penal modernism [we]re deeply ambivalent”: benevolent reform and benevolent repression were combined and astutely prescribed according to circumstances and political opportunities (Pisciotta, 1994; Rothman, 1980). Even where a rehabilitative goal was more authentic, that is, in the field of juvenile justice, the social control paradigm was nevertheless clear. Young offenders had to be corrected, and their lives had to be preserved from a destiny of illegality, but reformatories and correctional institutions were based on discipline, education, job training, and religious values, which all imposed a traditional model of honest citizens/workers who comply with social rules. Many positivists’ radical proposals were rejected or were applied in forms that were mitigated by theoretical compromises; for instance, determinism never replaced free will, and the principle of legality of punishment was reshaped but not abandoned. Penal modernism, however, succeeded in comprising the nexus between penal practices and social control at the center of both political agendas and discourses on criminal justice. Social control was a key feature of the early 20th century welfare state, and penal welfarism became part and parcel of an interventionist state model, whose regulatory competences were extended into different areas of social life (Garland, 1985).

Historicizing the Concept of Social Control

In the 1970s, revisionist histories of prisons and, more generally, of criminal justice highlighted the use of punishment as a tool for social control by established modern states. Despite criticisms and refinements in light of postcolonial and global studies (Gibson, 2011), this approach has been, and continues to be, influential for a critical understanding of the rationales underlying the development of any modern penal apparatus. Moreover, the relationship between punishment and social control has been investigated by historians of criminal justice and penal institutions, who have suggested that this relation is independent from the formation of a Leviathan state. By historicizing the concept of social control, namely, by clarifying social control’s cultural, social, and legal contexts, the risk of using the term as a “convenient catch-all term” (Mayer, 1985; Philips, 1985, p. 59) can be avoided. Both premodern European legal cultures and late 19th to early 20th century criminological positivism provide examples of how penal mechanisms have been exploited as crucial instruments of social control.

Further Reading

  • Deflem M. (Eds.). (2019). The Handbook of Social Control. Wiley Blackwell.
  • Dikötter, F., & Brown, I. (Eds.). (2007). Cultures of confinement: A history of the prison in Africa, Asia, and Latin America. Cornell University Press.
  • Dinges, M. (2001). Usi della giustizia come elemento di controllo sociale nella prima età moderna. In M. Bellabarba, G. Schwerhoff, & A. Zorzi (Eds.), Criminalità e giustizia in Germania e in Italia. Pratiche giudiziarie e linguaggi giuridici tra tardo medio evo ed età moderna (pp. 285–324). Il Mulino/Duncker & Humblot.
  • Emsley, C., Johnson, E., & Spierenburg, P. (Eds.). (2004). Social Control in Europe, 1800-2000. Ohio State University Press.
  • Hespanha, A. M. (1987). Da ‘iustitia’ à ‘disciplina’: Textos, poder e política penal no Antigo Regime. Anuário de História del Derecho Español, 57, 493–578.
  • Roodenburg, H., & Spierenburg, P. (Eds.). (2004). Social Control in Europe, 1500-1800. Ohio State University Press.

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Notes

  • 1. “Sic autem ego puto raptum mulieris definiendum, quod scilicet sit violenta, vel cum malis artibus asportatio sive abductio mulieris honestae, et invitae de loco ad locum animo eam carnaliter cognoscendi” [I argue that the abduction of a woman should be defined as follows: namely, the deceitful carrying away or abduction from a place to another of an honest and unwilling woman, with the purpose of carnally knowing her].

  • 2. “Sunt enim leges, praesertim Poenales, quae potissimum patriam custodiunt. Sunt muri civitatum, in quibus totum illarum praesidium constitutum est, et quibus bonos quam tutissime detinent, malos arcent, et sibi appropinquare non finunt” [There are laws, especially the penal laws, which best of all protect the country. They are like cities walls, wherein their whole protection is based, and that defend very safely the good people so as wards the evil ones off and prevent them from approaching].

  • 3. Damhouder, 1558, p. 10: “Punienda ergo sunt maleficia, ut unius poena metus possit esse multorum” [Crimes should be punished, so that the penalty of one single person can be a fright for many people]; Bernardo da Botone, gloss Pertimescat: “quia poena unius debet esse metus alterius” [because the punishment of one single person must be a fright for others], in Gregorius Papa, 1595, p. 572.

  • 4. “Poena autem est delicti vel pro delicto satisfactio, quae propter delicta imponitur” [Punishment is a reparation of and for the crime, that is imposed because of crimes].