The Decline In The Use Of Corporal Punishments In Europe

“A villain truly deserving of this horror of nature in its entirety, condemned to see no longer the heaven that he has outraged and to live no longer on the earth that he has sullied, above the punitive city hangs this iron spider; and the criminal who is to be thus crucified by the new law is the parricide” (Vermeil, 1781, cited in Foucault, 1991, pp114).

In the above statement, Vermeil is describing a corporal punishment, the “infliction of physical pain” on the body of a criminal (Tikkanen, 2019), where the criminal would be hung up in an iron cage for everyone to witness this public theatre of punishment. In modern times, such a punishment would be considered horrendous and inhumane, but in the pre-enlightenment era, corporal punishment - such as mutilation, flogging, branding – were very common punishment practices. What caused this dramatic change in view point? By considering theories of Durkheim, Foucault and Weber, one can develop a timeline of the changes in social belief and of society that lead to the changes in punishment law to create our modern-day penal system.

Durkheim’s criminological theories were largely focused on sources of social solidarity and the methods that keep society functioning smoothly. Regarding punishment, Durkheim saw crime as being culturally defined. Therefore, a crime is not simply an act breaks the law but instead an act that disobeys the society’s conscience collective (Garland, 1990). The conscience collective being the “totality of beliefs and sentiments common to the average members of a society” (Durkheim, 2014, pp 63). Moreover, Durkheim saw punishment as symbolic and functional, serving to strengthen the social bonds between members of society. Furthermore, Durkheim describes two types of solidarity: mechanical and organic. Mechanic solidarity describes more primitive societies where shared morals are founded in religious beliefs and relationships are forged and maintained through shared experiences and unity (McNeill & Dawson, 2014). The conscience collective is very intense and rigid, due to its foundation in religion. So, when the collective is violated through crime, it catalyses an intense hostile emotional response in the rest of society that demands vengeance upon the offender. Consequently, corporal punishment is common as even a slight violation against the conscience collective is significant, so the violent vengeful response within the society is great (Garland, 1990).

However, in more developed societies, based on organic solidarity, there is a separation from religion and an increase in moral diversity. So, the only shared characteristic that forms the psychic bond between people is humanity (McNeill & Dawson, 2014). In such societies they recognise the value of the individual, of freedom and of tolerance. Thus, social bonds have evolved from invoking a hostile reaction when violated to a calmer reflective response (Garland, 1990). In addition, Durkheim sees a conflict in the minds of people due to the rise in humanism. The morals that are violated and demand vengeance when a crime is committed, are the same ones that create sympathy towards the offender being punished. Accordingly, there is a decline in the use of corporal punishments as society develops from a mechanistic to an organic solidarity. Due to crime no longer being an act against god, and the acknowledgment of every member of a society having a unique life induces a sympathetic reaction to the one being punished (Garland, 1990).

Yet Durkheim completely disregards this theory of evolution from mechanical and organic solidarity in his later works. Potentially because while he argued that an organic solidarity is superior to a mechanical one, he could not support his claims. In fact, in his later work, Durkheim emphasises the need for group symbols and rituals in an integrative society. Which can easily be interpreted as a support for the conscious collective, a foundational pillar of mechanical solidarity (Thijssen, 2012). How can we trust in the validity of his claims if Durkheim himself contradicts them?

Moreover, Durkheim based his conclusions from societies largely differing culturally from the western societies he applied his theories to, e.g.: the ancient Hebrews and the Aborigines. From these distant cultures he developed his view that punishment is a result of the intense emotive response to crime (Garland, 1990). Thus, drawing into question the ecological validity of his theory of solidarity. Especially, as Durkheim himself emphasises the importance of culture when defining crime. So, while these different cultures may behave in the way Durkheim describes. one cannot assume that a western culture will have the same response to crime or, therefore, punish in the same way.

Michel Foucault has become the key theorist regarding the history of punishment. By looking into the technologies of penal power and not just the social context of the time, Foucault addressed a large hole in penal analysis that theorists, such as Durkheim, missed.

Throughout the 17th century the scaffold a main part of the penal system. It was used in judicial proceedings to torture condemning evidence from the criminal. It was the place for vengeance; at the time any criminal act was seen as a direct act against the King and his will. The scaffold thereby acted as a symbol of the King’s power and his right to punish. However, at the end of the 1700s, the public event of these executions became places for the public to riot and protest the use of the inhumane punishing techniques, the criminal even becoming a hero of the people. Foucault argues that these riots were too disruptive to be ignored by those in power and were the turning point for penal law that lead to the decrease in violent corporal punishments. Additionally, there were increases in crime against property with an increase in moveable property, landlords were more vulnerable. Crimes such as poaching and rent avoidance became less tolerable and the law, full of loopholes, appeared ineffectual and overly harsh (Garland, 1990). A reform was called for, one based on a standardised process, with punishments that were appropriate for the crime (Foucault, 1991). Through this reform, the power of punishment shifted from the sovereign to the people. Thus, the increased regulation means that punishment is now about maintaining society and not about the King’s need to take revenge over those that defy him; inciting a decrease in harsh bodily punishments.

From here, the method of confinement quickly developed as the main method of punishing, moving from a time of embracing the spectacle of visible punishment to a time of structured confinement (Foucault, 1991). The panoptic prison was, to Foucault, the ideal method of punishment; a prison where the offenders constantly felt under supervision, without necessarily being under constant supervision, would increase the self-control of the inhabitants of the prison. The constant surveillance also aids, what Foucault referred to as, normalisation – the process of correcting the behaviour of criminals. As this process needs to identify the abnormal actions of criminals to correct them to a normal way of behaving, constant surveillance would provide the in-depth detail needed (Garland, 1990). This development of the prison is a physical representation of society’s step away from corporal punishment and towards a forward looking, rehabilitation perspective.

Foucault claimed that the change in the penal system was rapid from 1780 to 1840. However, in actuality, penal reform regarding corporal punishments started developing around the 1600s when there started to be a decline in the use of methods such as flogging and branding (Spierenburg, 2004). Moreover, contrary to Foucault’s claims, not all sections of the modern penal system were in place by 1840. Through these claims, Foucault is clearly disregarding the importance of professions, such as psychiatrists, who are vital in modern day sentencing. Thus, striking doubt that his theories actually are correct in their representation of the modern-day judicial system.

On the surface, Foucault’s theories seem entirely different to Durkheim’s. However, both make the point that punishment is a way to maintain a functioning society. Foucault puts this as those who offend have broken the ‘contract’ of society and so society as a whole works to fix the broken deal through punishment. Durkheim refers to punishment as a manifestation of social solidarity and societies need to preserve the social bonds with each other. This overlap in ideas increases the validity in their theories.

What’s more is that Foucault clearly claims that it was the rioting surrounding the scaffoldings that lead to their abolishment. However, other theorists claim that the rigor and distribution of the riots where significantly less meaningful than Foucault claimed and were not effective enough to abolish the punishment (Garland, 1990). This lack of accuracy causes doubt in the accuracy of Foucault’s whole historical account of the decline in corporal punishment.

Before any discussion, it is important to note that Weber did not specifically discuss punishment. However, his theories can often be found as the underlying tone in literature regarding punishment. Weberian theory sees penal practises as, historically, being led by emotions and other irrational factors. Then over time, society modernised and moved to a system of, what Weber called, bureaucratic rationality (Garland, 1990, Hudson, 2003). Intrinsic to this development was society’s movement from religion and traditional authority, ie: the King, and towards a belief in science, through the process of disenchantment. Power began to be monopolised by the state, creating an increase in need for trained officals and administrative systems for the execution of penal law. Consequently, the emotion that previously ran the penal system faded out and was replaced by a dehumanised burearatic organisation. Clearly evidenced by our modern day justice system; authority is held with appointed individuals rather than the public and all sentencing is executed in accordance with the law (Hudson, 2003). As punishment moved away from the public eye, the public articulation of anger towards crime faded out too. Moreover, the offical methods of discussing punishment with the public became scientific and reflective of the rationalisation of punishment (Garland, 1990). It became necessary for those involved with sentencing to have specific knowledge and training, turning punishment into an elite topic above public comprehension. Through this Weberian perspective, it can be argued that the decline in corporal punishment was not due to the rise in humanism, as Durkheim argued, but instead the development of bureaucratised rationalism (Hudson, 2003). The lack of emotion in the penal system means there is no need for excessive punishment based on revenge or other irrational factors that could have been the drive for corporal punishments in the pre-enlightenment era. Instead, there are pre-set rules for what punishment crimes are deserving of and even alternate punishments not layed out in the law means going through a beauratised system that ensures the punishment is still fair and relative to the crime.

However, rationalisation never fully took over the penal system of punishment, there are still non-rational values within the system. David Garland (1990) argues that the courts of law still “openly [convey] emotive attitudes” (Garland, 1990, pp 192) of outrange and condemnation, effecting penal insitutions through budgets, sentence length and parole. While adminitrastive processes of beuracratic organisations do work to decrease the influence of these factors, Garland (1990) argues that they just make the conflicts more manageable without removing them from the system entirely.

Having reviewed the theories of Durkheim, Foucault and Weber, one now has a better understanding as to how and why there was a decline in corporal punishment in the post-enlightenment era. Durkheim argued that the development of society from primitive to modern increased awareness of the differences between people and their lives, so it is impossible to know what the reasons behind crimes and therefore people are less inclined to use harsh corporal punishments. Foucault argued that it was the peoples’ rioting and humanism that drove out corporal punishments and allowed confinement to rise as the main source of punishment. From the Weberian perspective, society moved from a time of emotion to a time of rational thought which reduced the use of excessive vengeful punishments. It impossible to identify perspective is the most accurate in explaining corporal punishment’s decline in Western Europe as all three take largely different perspectives; Durkheim comes from the view of the people and their desire for punishment, Weber considers the view of bureaucratic organisations that control the sentencing of punishments and Foucault takes a more interactionist approach between the people and the state. Nevertheless, one can be sure that by looking at these three key theorists, they have a very well-rounded picture of why there was a decline in corporal punishment in western Europe during the post-enlightenment era. 

07 July 2022
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