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dc.contributor.authorWetzell, Richard
dc.date.accessioned2022-02-18T15:47:40Z
dc.date.available2022-02-18T15:47:40Z
dc.date.issued2022
dc.identifier.urihttps://library.oapen.org/handle/20.500.12657/53000
dc.description.abstractThe reform agenda promoted by the late-nineteenth-century penal reformers variously described as advocates of ‘positivism’, ‘social defense’ or as members of the ‘modern’ or ‘sociological’ school of criminal law threatened to erode the boundary separating criminal justice from extra-judicial forms of social control. Focusing on the German case, this essay investigates the debates between Imperial Germany’s ‘modern’ and ‘classical’ schools of criminal law over two questions that posed particularly stark challenges to the dividing line between criminal justice and extra-judicial forms of state intervention: (1) the implications of determinism for the question of legal responsibility, and (2) the implications that making ‘dangerousness’ the key criterion for punishment had for the nature of criminal justice and the relationship of judicial and extra-judicial measures of intervention. After analyzing these debates, the essay examines the rapprochement between the modern and classical schools of criminal law around 1900, the emergence of compromise proposals at the biennial congresses (Juristentage) of German-speaking jurists from 1900 to 1906, and the draft codes produced by Imperial Germany’s official penal reform commissions from 1906 until 1914. The essay advances two central arguments. First, the classical school’s endorsement of the dual-track system for recidivists and post-prison detention in an asylum for mentally abnormal offenders demonstrates that the classical school had, in fact, accepted the modern school’s claim that mentally ‘habitual criminals’ as well as ‘mentally abnormal’ offenders posed serious threats to the social order that were not being sufficiently addressed by the existing legal system. Second, the conflict between the modern and classical schools was not about the question of whether measures based on an offender’s ‘dangerousness’ (rather than the offense committed) were warranted; the majority of the classical school agreed that such measures, including indefinite detention, were warranted. Instead, the conflict concerned the different, narrower question of whether such measures should be imposed as part of the criminal justice system or whether they should be imposed outside this system, as extra-judicial measures, that is, in the form of administrative, police, welfare or medical measures. Therefore, the debate between the two schools was mostly a debate over what form social defense measures should take. Whereas the modern school called for a broader vision of criminal justice in the service of protecting society against dangerous individuals, the classical school sought to keep criminal justice narrowly focused on offense-based retributive justice and therefore insisted that social-defense measures based on dangerousness be farmed out to non-judicial state agencies.en_US
dc.languageEnglishen_US
dc.subject.classificationthema EDItEUR::N History and Archaeology::NH History::NHB General and world historyen_US
dc.subject.classificationthema EDItEUR::L Law::LA Jurisprudence and general issues::LAZ Legal historyen_US
dc.subject.classificationthema EDItEUR::J Society and Social Sciences::JK Social services and welfare, criminology::JKV Crime and criminologyen_US
dc.subject.othercriminal, criminological, law, reform, positivismen_US
dc.titleChapter 2 Penal reform in Imperial Germany: Conflict and compromiseen_US
dc.typechapter
oapen.identifier.doi10.4324/9780429323713-3en_US
oapen.relation.isPublishedBy7b3c7b10-5b1e-40b3-860e-c6dd5197f0bben_US
oapen.relation.isPartOfBook2436cfcb-b43a-4567-93d0-9e4a6b7f51b1en_US
oapen.relation.isbn9780367340599en_US
oapen.relation.isbn9781032133539en_US
oapen.imprintRoutledgeen_US
oapen.pages33en_US
oapen.remark.publicFunder name: German Historical Institute Washington
peerreview.anonymitySingle-anonymised
peerreview.idbc80075c-96cc-4740-a9f3-a234bc2598f1
peerreview.open.reviewNo
peerreview.publish.responsibilityPublisher
peerreview.review.stagePre-publication
peerreview.review.typeProposal
peerreview.reviewer.typeInternal editor
peerreview.reviewer.typeExternal peer reviewer
peerreview.titleProposal review
oapen.review.commentsTaylor & Francis open access titles are reviewed as a minimum at proposal stage by at least two external peer reviewers and an internal editor (additional reviews may be sought and additional content reviewed as required).


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