by Markus D. Dubber and Lindsay Farmer (eds). Stanford, CA: Stanford University Press, 2007. 352pp. Cloth. $70.00. ISBN: 9780804754118. Paper. $27.95. ISBN: 9780804754125.
Reviewed by Marvin Zalman, Department of Criminal Justice, Wayne State University. Email: aa1887 [at] wayne.edu.
The title of this fine anthology is somewhat misleading. Its dozen chapters more precisely concern historical topics related to substantive criminal law, for the most part, and address a narrower audience than might be attracted to more general histories of crime and punishment. As explained in editors Markus Dubber and Lindsay Farmer’s brief introduction, MODERN refers less to a specific historical era than to newer modes of historical exposition generated by two transformative works by Douglas Hay and colleagues (1975) and Michel Foucault (1977) that should be familiar to most crime and justice scholars. The editors divide the essays into three groups, four concerned with “criminal responsibility and agency,” five dealing with “general theories of crime and punishment,” and three concerning the “comparative history of criminal law” (p.7).
The first essay in the first group by Nicola Lacey is an overly dense exposition of changes in the way in which English courts and criminal law scholars have viewed criminal responsibility. She sketches a program of future research designed to illuminate the philosophical analysis of criminal liability with newer social approaches that, arguably, will bring character evidence to the forefront. Lindsay Farmer’s second essay in this group generates the intriguing thesis that the symbolic and dramaturgic role of English common law criminal trials developed only when eighteenth and nineteenth century reforms reduced the number of capital crimes, moved executions behind prison walls, and eliminated this public spectacle. Farmer’s chapter fleshes out its thesis with an interesting exposition on changes in evidence law and the role of forensic medicine expert witnesses. Farmer’s chapter segues seamlessly into the next chapter by Joel Peter Eigen, which explores changes in England’s insanity defense legislation and litigation from 1800 to 1900. His story ultimately involves a struggle between forensic medicine and defense lawyers whose expansive concepts of insanity threatened to absolve every odd killer, and lawmakers and prosecutors who retrieved “legal notions of human agency” that imposed punishment and deterrence on a larger proportion of homicide defendants. Guyora Binder’s chapter marshals homicide prosecutions from Old Bailey cases from 1680 to 1830 to make a convincing case that the essence of murder and manslaughter before the mid-to-late nineteenth century was a violent ACT, rather than the categories of criminal INTENT that are now the key to liability in homicide cases. [*36]
The next five chapters focus on “general theories of crime and punishment.” While true up to a point, they bear some similarities to the first four chapters.
Markus Dubber’s chapter examines Thomas Jefferson’s failed attempt to reform criminal law on republican principles as part of a general law revision project undertaken by the government of Virginia in 1779. The failure was grounded in Jefferson’s disinterest in the project, his unfamiliarity with criminal law, his distaste for then current ideas of Blackstone (too Toryist) and Beccaria, and finally, the view of his generation that saw crime control not so much a matter of law but of police, which in early modern times suggested something like the administration of order by the discretionary powers of state officers. This distinction is probably unfamiliar to most criminal law scholars.
Bruce P. Smith’s fascinating short chapter refutes the myth of private prosecution in England between 1750 and 1850, by focusing on prosecutions for theft of metal and, specifically, lead. Theft of metal and hard-to-trace lead was a major problem in the long-term building boom in an expanding London, resulting in many prosecutions. Laborious private prosecutions for major crimes at Old Bailey (with one-third of property defendants acquitted) did not effectively suppress the crime. To remedy the problem, legislation authorized constables to stop persons under suspicious circumstances and created misdemeanors for not giving a good account. The result was a large number of successful prosecutions, punished by fines (and presumably the confiscation of the allegedly purloined metal), and administered by police officials and magistrates in the lower courts.
In a break with Anglo-American criminal jurisprudence, Benjamin Carter Hett analyzes legal thought in the late Weimar Republic through the lens of two political trials, involving Nazi attacks on communists, in which Hans Litten, a “self-consciously political lawyer” with a left-liberal orientation, represented the victims of the Nazi attacks. In the first case Litten cross-examined Hitler. His ouster from the second case, after lengthy, spirited, and lawful litigation tactics, by a court that bent the law by applying the doctrine of analogy to the relevant statute, exposed the antipositivist approaches to law espoused by the far right and the far left, leaving Litten as an Enlightenment defender of a positivist view of law.
Gerald Leonard next expounds in expert detail the well-established understanding of Oliver Wendell Holmes’ criminal jurisprudence as based on the utilitarian proposition of prevention (deterrence today). He argues that Holmes’ ideas were grounded in a social Darwinian view of struggle, tempered with an understanding that (Victorian) morality mediated through law was an operative and beneficial force.
The last chapter exploring criminal law theory, Martina Valverde’s study of English, Canadian and American sodomy law from the eighteenth century to today, is the most recognizably postmodern exposition in this volume. Valverde weaves together legal doctrine and practice with shifting social views to expose intriguing metamorphoses in law and society. Sodomy or buggery, for [*37] example, shifts from a crime designed to control bodies to one that controls speech as English jurists and courts become more concerned in the nineteenth century with false charges of sodomy for the purposes of blackmail. Rather than postulating a legal theory, Valverde traces the various ways in which the criminal law of sodomy has been shaped by a variety of social views to the point, today, of near acceptance in the United States and protection in Canada. Inversion indeed!
The last three chapters are studies of English colonial law and its administration in India. Martin Wiener offers a nuanced view of interracial murder trials, which tended to favor the English (whether perpetrators or victims) and undermine law’s equality principle, by adding class tensions, labor concerns, and differences between judges and executives, to the usual colonialism/racism plot. Elizabeth Kolsky, drawing on similar material, describes the ways in which the law’s promise of equal justice was systematically flouted on the tea plantations of late nineteenth century Assam in favor of whites, provoking resentments that fed the growing nationalist movement. The last chapter by Wendie Ellen Schneider is a case study of perjury legislation before the adoption of the Indian Penal Code in 1860, in which British colonial anxiety generated a pervasive belief of systematic deceit by the ruled that in turn undermined the ideology of the rule of law that provided justification for colonial rule.
These brief sketches do not do justice to the intricacy and depth of scholarship that characterize the chapters. MODERN HISTORIES has been a bracing intellectual excursion, and although I found each of the articles to range from interesting to fascinating, the audience for non-specialists is likely to be limited. The book, or some of its chapters, will appeal to specialists in the history of criminal law doctrine or historians of colonialism. This is not a book for any except the most advanced students in PhD seminars. I am not a specialist in these fields, but my checkered history as a criminal law teacher who has read a fair dose of criminal law theory and history, taught a seminar on political trials, and began teaching criminal law in a post-colonial English-style law faculty in Anglophonic Africa in the afterglow of Empire, has weirdly provided me with the right grounding to at least appreciate this volume. I believe that non-specialists who are likely to find this book valuable are teachers of criminal law at law schools and universities. The book would go a long way toward expanding the intellectual horizons of that cohort. The book should also appeal to eighteenth century and nineteenth century social historians.
Unfortunately, I do not see this book appealing to most political scientists or even to most courts and law scholars who do not have a grounding in the doctrinal study of criminal law. The same goes for scholars in my discipline of criminal justice. This is not to say that criminal law has nothing to say about important issues of state power and civil rights. Quite the contrary. But the level of specialized learning needed to make these essays intelligible is so high as to reduce its usefulness to scholars concerned with state power. I should also add that many of the essays in the [*38] first two sections are indeed sufficiently focused on relatively technical (but important) issues of criminal law doctrine and administration to be of limited value for scholars more directly interested in confrontations between the individual and the state.
Hay, Douglas, Peter Linebaugh, John G. Rule, E. P. Thompson, and Cal Winslow. 1975. ALBION’S FATAL TREE: CRIME AND SOCIETY IN EIGHTEENTH-CENTURY ENGLAND. London: Allen Lane
Foucault, Michel. 1977. DISCIPLINE AND PUNISH: THE BIRTH OF THE PRISON. New York: Pantheon.
© Copyright 2008 by the author, Marvin Zalman.