Journal of Criminal Law and Criminology Volume 31 Article 4 Issue 5 January-February Winter 1941 Criminology in Germany Werner S. Landecker Follow this and additional works at: https://scholarlycommons.law.northwestern.edu/jclc Part of the Criminal Law Commons, Criminology Commons, and the Criminology and Criminal Justice Commons Recommended Citation Werner S. Landecker, Criminology in Germany, 31 Am. Inst. Crim. L. & Criminology 551 (1940-1941) This Article is brought to you for free and open access by Northwestern University School of Law Scholarly Commons. It has been accepted for inclusion in Journal of Criminal Law and Criminology by an authorized editor of Northwestern University School of Law Scholarly Commons. CRIMINOLOGY IN GERMANY Werner S. Landeckerl The problem of crime can be studied I. from various points of view. The so- The Legalistic Approach: The ciologist, the psychologist, the jurist- Purpose of Punishment each looks at crime from a different angle and is concerned with an aspect German criminology can be said to of crime that is determined by the in- have arisen from the interest of the terest predominating in his field of jurist in matters of crime. This is study. This should be borne in mind hardly surprising, for in a sense crime in a discussion of German contributions is a product of law. No act is a crim- to the field of criminology. Here, too, inal act unless it is determined as such we find that the problems considered by law; i.e., unless law prescribes a vary with the branches of science from penalty for the person who has com- which the writers approach the study mitted that act. Therefore, once jurists of crime. In Germany, this has led to had become less dogmatic in their point an even greater diversity of crimino- of view by broadening their interest logical investigations than in this coun- beyond the mere interpretation of legal try. This is the case because in Ger- rules, they began to philosophize and many contributions to criminology are meditate about the purpose of legal in- not co-ordinated in any single depart- stitutions and focused their attention ment of higher learning; whereas, in on the question, Why do we punish the United States it is sociology which criminals? functions as a clearing house for all In varieties of criminological research. The answers given to this question Germany, criminology is not considered can be classified roughly into two a subdivision of sociology, nor is it an groups. According to some writers, the autonomous science in its own right; penalty is solely a reaction of society rather, it is a loose nexus among con- to the fact that a crime has been com- tributions coming from a variety of mitted; according to others, the penalty sources. Corresponding to the partic- means to an end, by which society ular points of view employed in these is a of fu- contributions, one can distinguish be- attempts to reduce the number the first tween the legalistic, anthropological, ture crimes. Customarily, psychological, sociological and biolog- group is called "absolute theories of ical approaches to the field of crimin- punishment," the second "relative the- ology. ories of punishment." ' Teaching Fellow in Sociology and Research was submitted on the recommendation of Pro- Associate, University of Michigan. This article fesnor Arthur E. Wood. [ 551] WERNER S. LANDECKER Absolute Theories-Justice punishment should be determined by An influential "absolute" theory was the principle of retaliation. Whoever that advanced by the philosopher Im- has committed murder must die, sex manuel Kant (1724-1804). Nowadays, offenses must be punished by castra- his penal theory appears to be the tion, etc. Beccaria, therefore, who ad- weakest point in his system of thought. vocated the abolition of capital pun- Yet he laid the basis for modern liberal ishment was motivated, as Kant would and humanitarian ideas by stressing the see it, "by the compassionate senti- value of the individual. Man is an en- mentality of a humane feeling." The tity which has its own intrinsic value; fact that Kant could arrive as such ''one man ought never to be dealt with conclusions from the principle of the merely as a means subservient to the intrinsic value of man shows that so- purpose of another. ' ' 2 This principle cial problems cannot be solved solely served not only as a basis for his hu- by means of abstract reason; for any manitarian philosophy, but also as the principle, when carried to its extreme, point of departure for his penal theory defeats itself. which is utterly devoid of humanitarian Negation of Wrong considerations. Since Kant assumes that man should not be used as a mere Partly in harmony with Kant's views means, he maintains that even when is the penal theory of another great being punished man should not be used German philosopher, Georg Wilhelm as a means to an end, neither to the Friedrich Hegel (1770-1831). He, too, end of reforming society nor even to advocates an absolute theory, in that he the end of reforming the criminal him- justifies punishment not as a means self.' Punishment, then, finds its jus- to influence either society or the crim- 4 tification only in the principle of jus- inal,'but as an act of retribution. How- tice, which requires that a person who ever, the reasoning on which this thesis has committed a crime shall be pun- is based is quite different fronr Kant's. ished. In other words, punishment has In the first place, if punishment were its raison d'6tre not in any future effect an attempt at exercising influence on upon which it may be directed, but people, either on the criminal or on only in the criminal act by which it is others, it would be based on the as- preceded. sumption that man is not free. This, Hegel objects, would violate the prin- Justice, according to Kant, requires ciple that right and justice must have not only that crime be followed by their seat in the free will, not in a punishment, but also that the harm restriction of the will. To use punish- done by the offender should find its ment as a threat by which to enforce equivalent in the harm done to him; law would be much the same as to raise justice requires that the measure of a cane against a dog. Man, however, 2Immanuel Kant, The Philosophy of Law, 4 Hegel's Philosophy of Right, transl. by S. W. trans]. by W. Hastie, Edinburgh, 1887, p. 195. Dyde, London, 1896, §§90 ff. 3 Kant, op. cit., p. 195. CRIMINOLOGY IN GERMANY must not be treated as dog, but with Therefore, it can be said in a sense due accordance to his dignity and that the criminal renders the law a honor. service; he gives the law a chance to Hegel feels that punishment is a form unfold its strength and by this to ap- of recognizing the criminal as a ra- pear as a concrete entity. By inflicting tional being, because the conception punishment on the criminal the law and measure of his punishment are de- takes advantage of this opportunity for ducted from his very act. The criminal materializing itself. Law gains in con- act is a negation of law; therefore, creteness and tangibility through the law must reinstate itself by canceling act of punishment; in Hegel's terms, this negation through punishment. "it becomes an actualized will, free not Punishment is the negation of a nega- only abstractly and potentially, but tion and in this manner serves the pur- actually." pose of restoring the reality of law. Does this interpretation of punish- Strictly speaking, punishment not ment exclude that a rational purpose merely re-establishes law as it existed is attached to it, in the sense that pun- before it was violated by the criminal ishment is also used as a means to in- deed, but it also transforms it from the fluence the criminal and society? Hegel state of abstractness to that of concrete- objects that this would amount to deny- ness. Hegel develops this idea in a ing the freedom of will and to treating highly philosophical manner, emphasiz- man as we treat a dog. Since Hegel's ing logical necessity rather than social days, however, psychologists have reality. But if we translate his philo- found that differences between man .qophical terminology into sociological and dog-and even neurotic rats-are language, the result is not such bad not as far reaching as they may appear sociology after all. We might-put it to be. this way: Criminal law, as all law, has Relative Theories its social reality in its practical appli- cation and enforcement. A legal act According to absolute theories as which is never violated and therefore they are exemplified in Kant's and never e.nforced exists only in the books Hegel's views, punishment looks back and has, in this sense, merely abstract to the past, so to speak, being a reac- existence. The fact that it is never tion of society to an occurrence that has broken shows that it does not ordain taken place in the past. As viewed by anything which would not be done at relative theories, however, punishment any evnt. Therefore, such an act is looks into the future, being an attempt not a social Force or control factor, for at exerting sonic kind of control over no force is so formidable that It does conditions which arc conducive to not give r1se to occasional revolts. A criminal actions. Since lese latter law which is never broken-and a law theories consider punishment as a which is always broken-exists only means of crime prevention, they are on paper.