Sunday, December 29, 2013

Whitman on the Transition to Modernity in Criminal Law

James Q. Whitman, Yale Law School, has posted The Transition to Modernity, which is forthcoming in the Oxford Handbook of Criminal Law, ed. M. Dubber and T. Hörnle.  Here is the abstract:    
This paper addresses the transformation of criminal justice that took place between about 1750 and 1850. This was the period that witnessed the disappearance of the bloody public sanctions of the pre-modern world and the transition to imprisonment as the ordinary form of punishment; seminal campaigns against torture and excessive use of the death penalty; critical steps in the formation of the common law criminal trial; the move to modern forms of codification and refined dogmatic criminal theory on the Continent; and the flowering of the modern philosophy of criminal law. The paper offers an account of the forces at work in this remarkable period. After discussing the leading interpretations of Michel Foucault and John Langbein, the paper 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 this successful monopolization, the paper argues, states underwent a deep, and 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 in practice 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.