This is an electronic version of an article published in British Journal of Criminology 48(1):102-104, 2008. Also as pdf file.
Cite as: Deflem, Mathieu. 2008. Review of Crime, Police and Penal Policy: European Experiences 1750-1940, by Clive Emsley. British Journal of Criminology 48(1):102-104.
In the context of modern industrial societies, the association between crime, police and punishment is historically variable, yet also suspiciously comparable across different nation states. Questions about the comparative history of criminal justice must address change and variation as well as continuity and similarity. In this book, historian Clive Emsley synthesizes extant research on the evolution of criminal justice conceptions in the comparative context of several European states over the course of the 200 years preceding the Second World War. This effort is meant to offer not merely an overview of the various national (and local) histories of criminal justice, but also to provide a comparative perspective that extends beyond the national borders of criminal legislation, policing and penality.
Various theories exist on the changes that affect criminal policies in the considered period. Marxian explanations contemplate on the economic conditions of the treatment of the criminal classes as one aspect of the capitalist order. Durkheimian theories highlight the disintegrative effects of rapid modernization processes across society. Whereas civilization experts point at the humanitarian progression in criminal policies, Foucauldian scholars unmask such efforts in terms of an increase in intervention and manipulation. Emsley draws eclectically from these varied ideas to focus, as a matter of cultural history, on the representations, ideas and narratives surrounding criminal policies and the various groups involved in these constructions. These ideas of criminality are examined and situated in the context in which they were developed and applied, so that criminal policies can be explored relative to other important societal developments, such as the growth of the nation-state and the emergence of a literate public, to be scrutinized in terms of the various agencies that are involved (those who make and those who enforce laws), the unanticipated consequences of deliberate institutional action, and the resulting tensions that may exist between the development and the implementation of ideas.
Emsley's narrative unfolds chronologically and starts in the period of the old regime, with a special focus on developments in continental Europe. It details the Roman foundations of the inquisitorial system and the codification of formal systems of law. Yet, variations are also revealed as monarchial powers were confronted with the rise of the nobility. The differences with the English legal system, in which a notion of equality before the law existed, are well known. Importantly, criminal policies over time involved a different relation towards religion as the order of criminality, politics and the entire social order were defined in distinctly worldly terms. As Enlightenment thinking took hold, public tortures were gradually abolished and the death penalty was less favorably received. The prison system expanded, and the category of crime focused on vagabonds, bandits and criminal gangs involved in such acts as smuggling and the looting of shipwrecks. Most criminal activities were not formally prosecuted but would be handled locally or not at all. The police function developed gradually from broader institutions functionally conceived in terms of order and welfare.
The changes brought about by the French revolution were to imply equality and justice for all in matters of criminal law and its implementation, involving special guarantees of due process. Incarceration was to be the most favored form of punishment, but the death penalty was maintained for certain crimes. The system under Napoleon again returned to some of the harshness of the old order, yet considerable variations continued to exist in how the law was administered and enforced in concrete cases. At the same time, there was an internationalization of criminal justice systems as a result of the occupation of other countries as well as the diffusion of ideas by means of the printed word. The period of the Napoleonic wars leading up to Waterloo in 1815 led to new crime problems brought about by gangs of deserters and a rise in smuggling. The French police system became more structured, albeit never fully centralized, and police reforms took place in other states as well. In 1796, Patrick Colquhoun published his well known treatise on the police that would set in motion the developments leading to Robert Peel's Metropolitan Police Force in 1829. In the English context, special emphasis was placed on the preventive role of policing. Despite differences in structure and mission, however, it is to be noted that there were relatively few police officers across Europe until the mid-nineteenth century and that most were concentrated in the large city centres.
Besides the formalization of the police function, the first half of the nineteenth century also witnessed an unprecedented expansion in the measurement and study of crime. Elmsley argues that the science of criminal statistics led the way in providing the hard facts and the regularities upon which government and criminal policies could be efficiently developed. At the same time, the statisticians realized the flaws in the official crime numbers, as they could be due to differential prosecution and enforcement. Generally, however, crime statistics were used to justify an expansion of the criminal justice apparatus and its continued employment. Criminal enforcement was not only needed in large urban communities, but also in the countryside, where the dangerous classes of criminals consisted of the idle and the vagrant. He argues persuasively that the criminal classes of poor men were conceived as distinct entities, as portrayed in crime novels and police reports alike, that existed separately from the normal order of society as a perceived threat to the propertied classes. To prosecute these criminals, the police served as one instrument amongst others, such as shaming and retributive violence, although police institutions increasingly gained in importance. The prison system, likewise, expanded but not always and not always clearly with reference to the famous panoptical model of Bentham.
Despite the development of large, sophisticated police and prison systems, Elmsley details how crime problems continued to plague society throughout the nineteenth century. The human sciences of the time approached crime as a medical or psychiatric condition. The identification of criminals was also rationalized, especially through the development of the Bertillonage and fingerprint systems. The growth of scientific reasoning eventually led to the birth of criminology as the specialized knowledge of criminality and criminals. Criminology was to be a science directly serviceable to criminal justice, so that police officers and judges could be trained efficiently, not in law, but in the knowledge and know-how of the criminological sciences. By the close of the nineteenth century, the internationalization of crime also began to take hold as a special police concern. Formally committed to neutrality, the police professionals would, in their actions, differentially impact on different segments of the populations. Across rural and urban areas, moreover, variation persisted in the impact of police and the administration of criminal justice. Insights from criminology influenced legislation and criminal policies at the dawn of the twentieth century, when the seeds were sown of a system of penal welfarism. The First World War brought about concerns for new criminal problems, such as soldier-smugglers and violent organized groups. Following the end of the war, disparities across national borders in matters of criminal policy and policing were particularly brought about by the politically divergent paths in Europe among democratic and totalitarian regimes and their ultimate collision during the Second World War.
Clive Emsley's work has done much to enrich our knowledge of the history of criminal policy, crime and policing, especially in the context of European societies. This book takes a special place in his oeuvre because it is not a research monograph on a specific aspect of criminal justice history, but instead presents a synthesizing effort on the basis of existing research efforts, both by Emsley and other scholars. Emsley introduces the book as a ‘comparative textbook’ (p. vii), but the designation textbook does not do this book justice. Instead, the book is more comprehensively aimed at scholars as well as students who are interested, from various disciplinary backgrounds, in the history of crime, police and punishment. From my disciplinary background in sociology, I would have preferred the work to have been better framed theoretically rather than only chronologically in terms of the underlying dimensions and dynamics that can account for the observed developments in criminal policy. Relatedly, there is a tendency in Emsley's book to treat crime and criminal justice in a functional relation and insufficiently in constitutive terms. However, a major strength of the work is the historian's attention to detail and to empirical variation in the reality that analytically minded scholars might, at times, be too keen on unifying within an overarching theoretical scheme, even when the facts do not allow for such neat systematization. Besides its cautionary lesson for over-eager theoreticians, Emsley's book also suggests the need for our continued study of the manifold institutional dimensions of criminal justice policies, their ideas and practices, at various levels of analysis in the context of concrete social settings, locally, nationally and internationally.