Studies in Legal History

Punishment and Welfare in Germany, 1850-1933

Warren Rosenblum

• Publisher: The University of North Carolina Press
• Year: 2012
• ISBN:
  9781469606767
• Topic: Law
• Subtopic: Criminal Law
• Index: Law

Germany today has one of the lowest incarceration rates in the industrialized world, and social welfare principles play an essential role at all levels of the German criminal justice system. Warren Rosenblum examines the roots of this social approach to criminal policy in the reform movements of the Wilhelmine and Weimar periods, when reformers strove to replace state institutions of control and incarceration with private institutions of protective supervision. Reformers believed that private charities and volunteers could diagnose and treat social pathologies in a way that coercive state institutions could not. The expansion of welfare for criminals set the stage for a more economical system of punishment, Rosenblum argues, but it also opened the door to new, more expansive controls over individuals marked as "asocial." With the reformers' success, the issue of who had power over welfare became increasingly controversial and dangerous. Other historians have suggested that the triumph of eugenics in the 1890s was predicated upon the abandonment of liberal and Christian assumptions about human malleability. Rosenblum demonstrates, however, that the turn to "criminal biology" was not a reaction against social reform, but rather an effort to rescue its legitimacy.

1. THE “INTERNAL BORDERS”

Strategies of Exclusion in the Nineteenth Century

In his Addresses to the German Nation, Johann Gottlieb Fichte argued that “the first, original and truly natural borders of states are beyond doubt their internal borders.” The people of one nation, he declared, “are joined to each other by a multitude of invisible bonds by nature herself, long before any human art begins.” Fichte, a philosopher and erstwhile revolutionary, sought to rally his fellow Germans together at a time when the country’s external borders were overrun by Napoleon’s armies. The reinforcement of internal dividing lines, in his view, was essential to reviving the Fatherland. A true nation, he warned, cannot “absorb and mingle with itself any other people of different descent and language without itself becoming confused . . . and violently disturbing the even progress of its culture.” Fichte’s call for unity was thus predicated upon the idea of national purification: the recognition and the nurturing of “invisible bonds” required the recognition of the invisible sources of difference between citizen and Other, and the expulsion of the latter from the Volk.¹

Decades ago, Hannah Arendt called Fichte “the favorite modern scapegoat for German race-thinking.”² For more recent historians as well, Fichte’s indulgence of romantic nationalism has been portrayed as the original sin in the German political imagination.³ According to Leonard Krieger, “Fichte represented the liberal intellectual who was politicized, under the auspices of nationalism, in a conservative direction.”⁴ James Sheehan sees Fichte as typical of a generation, “propelled along a path from Enlightenment cosmopolitanism to intense national enthusiasm by the experiences of war and upheaval.”⁵ In these interpretations, a sober and universalist form of liberalism, based solidly upon principles of inclusion, was derailed by an impassioned, poetic mysticism driven by an obsession with eternal contaminations.⁶

This chapter challenges such an essential opposition between juridical liberalism and romantic nationalism by exploring the role of “hidden bonds” and “internal borders” within a classic enlightenment project, the creation of the modern Rechtsstaat. The so-called “classical-liberal” jurists in Germany understood the law as a tool not only for protecting the rights of citizens against arbitrary state power, but for defining and enforcing meaningful borders between the loyal and productive citizen and his other. Though liberal jurisprudence defined the criminal (Verbrecher) as the agent of a specific criminal act, liberal writings on police and penal practice operated with a more complex and flexible concept of criminality. In administrative theory and practice, the criminal connoted any person with a will or predisposition to illegal behavior. As a problem of policy, the criminal was not an isolated phenomenon but part of a larger “sociopolitical” challenge: the criminal class or subculture known as “Verbrechertum.” Criminals were therefore presumed to constitute a distinct category of persons, united by conscious or unconscious bonds of affinity. In scholarly and popular writings of the nineteenth century, Verbrechertum could be compared to a hostile army occupying German territory or a virus living upon the body of the Volk. Like the Jew and the Gypsy, the criminal was marked off not only as a threat to the security of civil society, but to the integrity and the health of the nation. These were races of men who stubbornly refused to adapt to the norms of productive labor and civic life.⁷ As long as they remained essentially rootless and alien, they were destined to be economically parasitic and politically disloyal.

An underlying tenet of classical liberal doctrine was the belief in equality and man’s capacity for self-improvement, but this optimistic theory begged the question of how, in practice, genuine individual advancement was to be distinguished from a mere superficial or external adaptation.⁸ The notion of “invisible bonds” provided a hermeneutic of suspicion concerning anyone once marked as “other.” Criminals, like Jews, were presumed to possess a hidden language, secret rituals, and codes that were indecipherable to the uninitiated. Indeed, the criminal dialect (Gaunersprache) was supposed to be closely related to Yiddish, Hebrew, and certain Gypsy dialects.⁹ Criminals, likewise, could mimic bourgeois norms and infiltrate cultural codes. They could disguise their appearance, speak (seemingly) perfect German, and effortlessly imitate the outward forms of respectability. This preoccupation with hidden difference qualified and restricted any attempts by German liberals to use law as a tool of universal social integration.

This chapter considers the place of exclusionary mechanisms, that is, efforts to label, segregate, and contain “Verbrechertum,” within nineteenth century criminal justice. For classical-liberal jurists, the security of civil society could be ensured by denying full juridical rights and privileges to previously convicted persons and individuals branded as threats to public welfare. Dangerous individuals were the objects of police-administrative regulation, while citizens were shielded from such controls within the ever-expanding domain of the Rechtsstaat. The two forms of regulation complemented, indeed helped to constitute each other. Starting at mid-century, however, Christian social reformers challenged the stark dualities inherent to this juridical model of regulation. Against the dichotomy of citizens and criminals, they stressed the image of a fallen man: deprived of spiritual knowledge and community, corrupted and entrapped by criminal societies. As an alternative to police and juridical power, they proposed that Christian associations “missionize” among the outcasts, guiding the internal, moral transformation of former offenders within and then beyond the penitentiary walls. For many jurists, this Pietist-inflected intervention in criminal justice threatened the very notion of individual freedom as a foundation for citizenship. Bismarckian jurists reasserted the importance of classical measures of exclusion and a classical threshold of independent virtue, competence, and respectability as a qualification for inclusion. Free labor, in their view, was the only legitimate touchstone of moral worth and the only conceivable lever of moral transformation.

Feuerbach and the Classical Liberal Tradition

According to standard accounts of German legal history, classical liberal jurisprudence emerged in the early nineteenth century as the logical and necessary ideology of a historically emergent class, the “productive middle strata” or Bürgertum.¹⁰ Eberhard Schmidt argues that the development of middle-class trade and industry in the post-Napoleonic era required the standardization and regularity afforded by a strong legal system. Moreover, the burghers’ practical and political ambitions during the first quarter of the nineteenth century were consistently blocked by the administrative police state, which was essentially under the control of the aristocracy. “The burghers’ emergent moral self-awareness,” writes Schmidt, “could not bear the shabby police spirit” of the times. Police science (Polizeiwissenschaft), the dominant theory of government in these times, held that the state was responsible for all aspects of the citizens’ lives and welfare. Against this ideal, the burghers defended the concept of civil society as autonomous and self-constituting. According to historians, Paul Johann Anselm von Feuerbach best represented the aspirations of the Bürgertum when he imagined a German state whose role was limited to that of a “Schutzanstalt,” an institution of protection.¹¹ The state’s task, according to Feuerbach, was to ensure “the mutual freedom of all Burghers . . . the condition in which each can fully exercise his rights free from attacks against his sphere of personality.”¹²

A professor in Jena and an early follower of Kant, Feuerbach was a prolific scholar, a judge, and the author of one of the most influential penal codes ever written, the 1813 code for Bavaria. According to Schmidt, Feuerbach’s jurisprudence influenced the character of German criminal law theory and practice for the next one hundred years. A pair of aphorisms from Feuerbach became slogans for generations of liberal reformers: “nulla pene sine crimen”—no punishment without crime, and “nulla crimen sine lege”—no crime without law. Punishment, in other words, must represent a response by the state to an actual crime, and crime must be understood as representing the violation of some existing, commonly recognized statute. Feuerbach’s writings challenged both the police principle of “special prevention,” which held that citizens who posed a threat to order and safety might be detained indefinitely, as well as the traditional practice of justice through which judges defined certain behaviors as criminal simply by “analogizing” to existing laws or customs. According to Schmidt, Feuerbach’s political sensibility drove his effort “to eliminate all arbitrariness through legal binds.”¹³ He reasoned that the state must not attempt to influence the personality of the criminal through punishment, but that it should concern itself only with the sanction specified in the laws. Thus punishment, in his view, served the limited purpose of “general deterrence.” The clear and specific threat of a sanction for any and all violators of the law provided the citizenry with a framework for moral education.

In effect, Feuerbach’s jurisprudence established the idea of the criminal as a purely juridic entity. Stripped of all social or psychological characteristics, the criminal became, by definition, merely the agent of a specific, legally proscribed act. Assuming that the criminal was found legally responsible for his crime, the punishment was set by the specific language of the law. This promise of legal certainty provided the foundation for political equality and for the exercise of freedom. It was essential to the larger classical liberal project of “containing” monarchic absolutism and any other form of arbitrary government.

In Feuerbach’s ideal justice system, judges exercised their power with an almost mechanical formality. The task of the judge, according to his textbook, was to “compare a given case with the letters” of the law, without consideration of the law’s “sense and spirit.”¹⁴ The purpose of the trial was not to protect society, to improve the lawbreaker, or even to enact justice; rather, it was to protect “the body” of the law. This anthropomorphizing of law was not accidental but reflected an association of law with sovereignty. The law had a “majesty” and an “aura” that constituted preconditions for orderly and good government.¹⁵ Law needed to be autonomous from politics and social preoccupations and the concerns of a particular situation. Law should not be “penetrated” or “violated” (as later commentators expressed it) by ideas and methodologies that were essentially foreign.¹⁶

As historian Pasquale Pasquino notes, Feuerbach’s jurisprudence was predicated upon denying any significance to variations among individual offenders, let alone the supposition of “human types.” In place of the criminal, Pasquino argues, is the postulate of a “free will” as establishing the subjective basis of the power to punish.

By its very nature this free will is precisely the faculty which is common to all (i.e. to every juridical subject). As such, it is not the object of a special form of knowledge. Anyone can commit a crime: homo penalis is not a separate species, but a function. What serves to explain the actions of homo penalis is not criminology but rather a “general anthropology.”¹⁷

Feuerbach’s “general anthropology” presumed that people’s actions were based on the rational calculation of pleasure and pain. Desire drove them to commit crimes; fear (of punishment), on the other hand, could “annul” their “sensible impulsion” toward the breach of the law.¹⁸ This image of the criminal offender corresponded to what Eberhard Schmidt called the “ideal of the middle-class human-type” (bürgerlich Menschen-typus). Feuerbach’s legal subject was the autonomous, rational, and responsible individual, one who recognized both the benefits and the obligations imposed by the legal system and was therefore truly free to choose whether to abide by the law.

Even as Feuerbach’s jurisprudence presented a clear and unequivocal image of the responsible and free legal subject, a different image of the criminal emerged in his two-volume book, Narratives of Remarkable Criminals.¹⁹ The Narratives never received the same attention from later jurists, or from historians, as Feuerbach’s writings on law.²⁰ Clearly looking past the idealized “juridic entity” invoked by his jurisprudence, this work was an exploration of criminal behavior based upon dossiers from recent criminal cases. Here Feuerbach searched for the “seeds of crime in the secret crevices of the [criminal’s] soul.”²¹ The work suggested that in the details of the criminal’s life and person one would find the essential nature of the criminal, “the ultimate cause” of a crime or even “the higher, governing principle of necessity.”²² Narratives described criminals as hemmed in by overwhelming desires, mental disturbance and social needs. What is more, the work explored the circumstantial complexities surrounding particular crimes with elaborate care and sensitivity, a notable contrast with Feuerbach’s rejection of such information in his jurisprudence.

Feuerbach’s criminal biographies mobilized popular and literary prejudices about “homo criminalis” as essentially different but treated the commission of crimes as complicated events rooted in a confluence of diverse psychological, social, and historical circumstances. The work was admired by a later generation of criminologists because of its treatment...

Table of contents

• Cover Page
• Beyond the Prison Gates
• Copyright Page
• Dedication
• CONTENTS
• ILLUSTRATIONS
• ACKNOWLEDGMENTS
• INTRODUCTION
• 1. THE “INTERNAL BORDERS”
• 2. PROTECTIVE SUPERVISION
• 3. PENAL UTOPIAS
• 4. THE EX-CONVICT AS NATIONAL HERO
• 5. CRIMINALS IN THE “FORTRESS”
• 6. CITY OF LOVE AND SUPERVISION
• 7. THE END OF JUSTICE?
• 8. CRISIS AND RENEWAL IN CRIMINAL REFORM
• CONCLUSION
• NOTES
• SELECTED BIBLIOGRAPHY
• INDEX