FOREWORD. 1 The information about the Centre and the Division of Culturally Integrated

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1 FOREWORD This monograph was produced as a result of research lead in the years between in the European Centre for Penological Studies at the ZPiSBI IPSiR UW 1 as a part of several smaller scientific research programs conducted by the Institute of Social Prevention and Resocialization of the University of Warsaw. The programs were as follows: The History of Penitentiary Doctrines (2007, IPSiR, DoR J. Utrat-Milecki), The History of Penitentiary Doctrines and its Cultural Context (2008, IPSiR, DoR J. Utrat-Milecki), Principles of Penological Thought in Chosen Western European Countries, Covering the Period Between 1750 and 1850 (2008, IPSiR, DoR J. Utrat- Milecki), Research on Social Conditioning of the Theory of Punishment and its Influence on Criminal Justice Policy (2009, IPSiR, DoR J. Utrat-Milecki), Sources of Law. Emotions or Rationale (2010, IPSiR, DoR J. Utrat-Milecki). Some of the research findings, which are omitted here, have already been published in peer-reviewed articles dealing with theory and problems, as well as in the collective 1 The information about the Centre and the Division of Culturally Integrated Legal and Social Studies (ZPiSBI) IPSiR UW and about theoretical framework of the Centre and the Division is presented in the Polish-English edition of Volume III of series of Works of European Centre For Penological Studies: European Centre for Penological Studies. University of Warsaw. Faculty of Applied Social Sciences and Resocialization. Institute of Social Prevention and Resocialization. Division of Culturally Integrated Legal and Social Studies, ed. J. Utrat-Milecki, J. Królikowska, Warsaw, IPSiR UW 2010.

2 20 FOREWORD work entitled Punishment in Science and Culture 2. Those studies are a continuation of a prior four-year research program Punishment in Science and Culture conducted by the IPSiR ( , IPSiR, DoR J. Utrat-Milecki). The results of this research have been successively published in peer-reviewed articles dealing with theory and problems, whereas their entire theoretic implications are presented in the book Principles of Penology. Theory of Punishment 3. This monograph presents the results of the research in certain aspects of contemporary penal cultures and their recent sources as basis for critical analysis of already existing theories of punishment and their classification in the criminal law science and penology. The research reveals serious scientific issues concerning the theory of punishment and its classification, which may affect the comprehension and, in consequence, the shaping of the criminal justice policy. The research unveils the need for global systematisation of basic classification categories of the theory of punishment. The results and achievements of this research have not only become the foreground for critique of the previous work; they have laid the foundations for new penological classification of the theory of punishment which can find its application in the fields of criminal law and social studies on punishment and prison history. If the question of penalty is to be a subject for scientific reflection and not just description, then in my opinion the earlier theoretic principles of punishment in the criminal law science and penology should be modified. The book is composed of five chapters embedded in two parts. In the first part we present the new classification of the theory of punishment portrayed against the critique of earlier classification of the main schools of penal thought and about a dozen important penal theories classified in various ways. Tackling the issue from the perspective of cognitive criteria, we present the features of and a justification for a new classification of the theory of punishment, in 2 Punishment in Science and Culture, ed. J. Utrat-Milecki, Warsaw University Press J. Utrat-Milecki, Principles of Penology. Theory of Punishment, Warsaw University Press 2006.

3 Foreword 21 which we distinguish the following categories of theories: imperative, instrumental, imperative and instrumental, penal negationism, humanist critique of penal practice, punitive populism and descriptive theories. Going beyond the earlier reflections and at the same time incorporating already existing work of research in penal law within the frames of studies on theory of punishment was made possible through the implementation of the strategy of the culturally integrated studies 4. An extended definition of criminal punishment had already been developed within the field of the culturally integrated studies and it represents the synthesis of the culturally integrated theory of punishment, which is the basis for this book. The strategy of the culturally integrated studies has been developed on the grounds of research that has been conducted since 1989 at the Institute of Social Prevention and Resocialization of the University of Warsaw. In the second part of the book we present some aspects of the dynamics of the western penal cultures. Our main focus is the period quite commonly regarded as the period of progress in the modern penal law policies that deal with criminal cases; a period that was marked by the birth of penitentiary systems, classical theories of punishment and traditional classification categories of the theory of punishment, whose sources can be, as a matter of fact, traced back to Antiquity. A specific natural history of a concept and phenomenon called panoptism was used in the research, which, altogether with the results of studies published in the first part of this book and with the previous research published in the aforementioned Principles of Penology. Theory of Punishment, have rendered it possible to develop here presented classification of the theory of punishment. The aim of these kinds of studies is to bring motivation for further, deeper research, which would open doors to important and, most of all, content-related discussions. This paper does not present the full 4 See: Culturally Integrated Studies, ed. J. Królikowska, J. Utrat-Milecki, [in:] Encyklopedia pedagogiczna XXI wieku, ed. T. Pilch, Suplement, Warsaw, Żak 2010; J. Utrat-Milecki Principles of Penology..., chapter II: Principles of Culturally Integrated Studies; J. Królikowska, Introduction, [in:] Integralnokulturowe badanie kontaktu kulturowego. Wybrane problemy społeczne i prawne, ed. J. Królikowska, Warsaw University Press 2009, pp. 7 8.

4 22 FOREWORD spectrum of studies on history of penal thought, institutions and doctrines. It covers the indispensable minimum of factographic material and sources, essential for the clarification of the matter. The aim of this paper, aside from its scientific character and intentionally chosen form of a theoretic introduction, is to serve as a didactic aid in the domain of advanced penology, especially in interpretations of the theory of punishment and history of penal cultures. *** 1. Significance of the classification of the theory and critique of punishment The idea of punishment finds its sources in myths, religious creeds and beliefs, and in general views on the world order and justice; that especially concerns the European cultural heritage 1. Punishing criminals has been the subject of philosophical and theoretic debates for a long time. The criminal law science continues philosophical discussions on punishment in relation to the analysis of concepts present in the legal language and parlance and in relation to complex social issues of the criminal law. Comprehensive culturally integrated penological studies are conducted with the use of the concept of philosophical and legal meta-analysis and dogmatic juridical exegesis, and in reference to methods and notions taken from such disciplines as sociology, anthropology, political science, psychology, history, criminology and education, or, indirectly, from economics and management, thus creating a general area of interest to modern penology understood as a cognate of the criminal law science 2. If we 1 See: J. Utrat-Milecki, Kara, [in:] Leksykon socjologii religii. Zjawiska badania teorie, ed. M. Libiszowska-Żółtkowska, J. Mariański, Warsaw, Verbinum See: J. Utrat-Milecki, Przedmiot, miejsce i rola penologii jako dyscypliny pokrewnej nauce prawa karnego, [in:] Gaudium in litteris est. The commemorative

5 Foreword 23 look at penology from this perspective, a need for classification of the theory of punishment emerges from a cognitive approach to its research and didactics, which constitutes the foundations for the development of specific models in criminal policy. This thought has already been expressed by Bronisław Wróblewski, who states that penology is one of the bases for theoretic penal and criminal policies and for the practical knowledge of this discipline 3. Leszek Lernell summarises the significance of the theory of punishment in criminal law and judicature, stating that the relationship between the theory and practice in penology and punishment is obvious and complex at the same time; it passes via diverse routes and is filtered in various ways 4. The lack of clarity in scientific notions leads to disagreement in theoretic discussions, while those discussions should be the basis for setting rules and directives that regulate the enactment and application of law. The lack of cohesion in terminology, due to the still existing traditional classifications in the theory of punishment that are inadequate to the present-day knowledge, cripples scientific analysis, which, in consequence, has a negative effect on the criminal policy. Leszek Lernell wrote the following with regards to this matter: Numerous or even countless theories of punishment have appeared in the evolution of the scientific thought; hence the need for categorisation, classification and systematisation. The doctrine includes many systems of classification based on multiple criteria. [...] Systematisation of the theory of punishment meets with serious, nearly unsurpassable obstacles 5. Unfortunately, in the recent years, the criminal law science has met with yet another challenge, that is the phenomenon of punitive populism, which leads to further marginalisation of the theoretic foundations of the criminal law and book offered to Prof. G. Rejman on her eightieth birthday, ed. L. Gardocki, M. Królikowski, A. Walczak-Żochowska, Warsaw, Liber See: B. Wróblewski, Penologia. Socjologia kar, Vilnius, Księgarnia Kazimierza Rutskiego 1926, t. I, pp L. Lernell, Podstawowe zagadnienia penologii, Warsaw, Wydawnictwo Prawnicze 1977, p L. Lernell, Podstawowe zagadnienia penologii, p. 39.

6 24 FOREWORD penology 6. Among other phenomena, punitive populism is responsible for the chaos that has reigned over the criminal policies of many western countries. Theoretical studies on punishment within the field of penology have developed on the one hand the new theory of culturally integrated punishment, which is adequate to nowadays state of research, and on the other, hereby presented classification of penal theories, which all together aim at rationalising the criminal law and policy discussions and preventing the negative tendencies of punitive populism from occurring. The word penology can have various meanings and it can also, when used with a specific modifier, define how an author, lawyer, philosopher, sociologist, anthropologist or some scientific movement or school perceive the notion of punishment. In the interpretation of penology, which deals with fundamental theoretic matters and practical implications of punishment, there is no room for dealing with various classifications of the theory of punishment suggested by different authors. However, selected on the grounds of the research 6 For further reading on categories of punitive populism, see: J. Utrat-Milecki, Penological Notion of Punitive Populism, IPSiR UW WORKS, t. 13, ed. J. Kwaśniewski, Warsaw 2008; for more information on its social and cultural conditioning: J. Utrat-Milecki Culturally Integrated Penology: Introduction to the Themes, Ideas and Controversies, [in:] Punishment in Science and Culture, pp On a similar diagnosis of weaknesses in penology of the Anglo-Saxon cultural sphere and its negative influence on criminal policies: D. Garland, The Culture of Control. Crime and Social Order in Contemporary Society, Oxford New York, Oxford University Press 2001, pp. 4 5; M. Tonry, Punishment and Politics. Evidence and Emulation in the Making of English Crime Control Policy, Cullompton, Willan 2004; R. Sparks, Penology [in:] The Sage Dictionary of Criminology, compiled and edited by E. McLauhglin, J. Muncie, Sage London Thousand Oaks, Delhi 2005, p. 207; J. Pratt, Penal Populism, London New York, Routledge 2007; on the European continent: G. Kaiser, Kriminologie, 10. Aufl., Heildelberg, C.F. Müller 1997, pp ; critique of criminal policies of countries which are the main exporters of scientific penological concepts, see for example: J. Sim, Punishment and Prisons. Power and the Carceral State, Los Angeles London New Delhi Singapore Washington DC, Sage 2009; J. Simon, Governing Through Crime. How the War on Crime Transformed American Democracy and Created a Culture of Fear, New York Oxford, Oxford University Press 2007; V. Stern, Creating Criminals. Prisons and People in a Market Society, London New York, Zed Books 2006.

7 Foreword 25 requirements, the classifications of a specific author or school s deliberations on penology are discussed according to the previously defined criteria, clearly set for the needs of the research 7. Comprehensive analysis of historically shaped classifications in the theory of punishment and views of particular authors or schools related to the matter should be dealt with in specialised monographic lectures on the history of penological thought On the need for a new classification of the theory and critique of punishment Lech Gardocki, in his manual on substantive criminal law affirms that the Polish criminal law in force does not deal with the sense and meaning of punishment in a direct way 8. Marian Cieślak, on the other hand, begins his interpretation of the substantive criminal law in Poland by stating that the phrase criminal law links that particular branch of Law with the notion of punishment. Therefore one could affirm that criminal law in its most general meaning consists of legal rules and regulations that standardise the implementation of punishment 9. Lech Gardocki summarises the subchapter on the concept and theory of punishment citing Franz von Liszt, a figure regarded to be the most eminent in the sociological and criminal jurisprudence, who claimed that the difference between the retributive and the utilitarian theory of punishment is only ostensible; consequently he posed the following rhetorical questions: Do I take the medicine because I am ill or because I want to get better? Do I swim because I fell into the water or is it because I do not want to drown? 10 Were we to acknowledge the fact that general disputes in the theories of punishment ended with 7 See also on classification of major theoretic trends in rationalisation of punishment: J. Utrat-Milecki, Principles of Penology..., supra note 3, pp ; on the general need and difficulties of classification of the theory of punishment: L. Lernell, Podstawowe zagadnienia penologii, supra note 8, pp L. Gardocki, Prawo karne, 12 th edition, Warsaw, Beck 2006, p See: M. Cieślak, Polskie prawo karne. Zarys systemowego ujęcia, Warsaw, PWN 1994, p See: L. Gardocki, Prawo karne..., supra note 12, p. 157.

8 26 FOREWORD the 19 th century strong critique of the position of popular science, then punishment, which is the central category of the criminal law according to Cieślak, should not be theorised from a general point of view, but with great regard to detail. It is not likely that the interpretation of substantive criminal law will encompass a broader presentation of general theory on punishment; however, it seems that there should be a place for theoretic studies on substantial categories of the criminal law in that particular branch of science. Even a certain decline in interest in the theory of punishment in many western countries in the 20 th century has been paradoxically connected with the general criticism of the theoretic foundations of penalties criticism of the theory of punishment (that is, of certain theoretic concepts) expressed by advocates of different, and very often critical theories of punishment. If someone holds a critical opinion towards the implementation of punishment, the most efficient course of action for them would be to present a critical theory of punishment which should include serious and reasoned arguments that would justify their point of view. Simple observations on ruling and implementation of certain forms of punishment are not sufficient. Reforms in modern criminal justice systems are related to the changes in the most general theoretic outlook on punishment from which we derive a series of practical and very specific solutions. Similarly to the recent situation in England, those reforms concern changes in the bases for penalty implementation in court, changes of names of many criminal law institutions, creation of new forms of penalties and changes within the program of education for criminal law officers. Those changes are very often triggered by the fact that a different, colloquially speaking, philosophy of punishment or ideology has become popular; they also take place during fierce theoretic debates during which they are discussed, when the most general theories are being analysed from the most detailed perspective. Results of such debates can potentially have a huge influence on many social aspects including the issue of human rights and liberty and many other detailed matters of criminal law, theoretic as well as practical. There is, of course, an open question of to what extent science viewed as a discipline or viewed

9 Foreword 27 with regards to its subject matter can actually have influence on the enactment or application of the criminal law justice. That issue should be the subject of penological studies. We cannot evade talking about the influence of various factors, which from the scientific perspective are seen as reality-distorters, when in fact, they shape the penal system; and we cannot talk about the theory of punishment as though those factors did not exist. It is important to know what kinds of factors there are and what influence they may have, therefore, it is important to analyse them within the field of penology, since revealing the problem might be the first step towards positive changes in the social and legal order. Many contemporary academics point to the fact that old classifications of punishment raise many doubts and questions. Taking into account numerous existing streams of penal thought and the intense debate on theoretic foundations of penalties that have been omnipresent in the recent literature on penology, we would agree that those should be a great motivation for finding new forms of representation of theoretic issues, including the classification of numerous concepts of punishments and its alternatives. In penological interpretations, we observe a need for a general classification of various important penological streams and concepts that have an influence on many practical, detailed matters of functioning of punishment, which is one of the most crucial categories of the criminal law. Evolution of modern classifications of the theory of punishment may have an important effect on research and on the interpretation of the foundations of the substantive criminal law, which regulate the implementation of punishment Principles of the modern penological classification of the theory of punishment The criteria for a new classification of the penal thought that we have adopted here can be defined as cognitive. The classification is done within the field of penology, or interdisciplinary legal and social studies of punishment. Those are conducted mostly for the needs of

10 28 FOREWORD the criminal law science and correct functioning of the judicature. The classification is treated as a tool which facilitates the acquisition and systematisation of knowledge. At least a dozen various and differing concepts of punishment are distinguished in the criminal law science and in penology. They are grouped for the purpose of this book in certain categories. The categorisation plays an important role in the shaping of the system and in research, as it allows us to define and name important issues in question. The context in which we are dealing with the concept of punishment is of high importance, too. Using the technique of hermeneutic analysis we are able to appreciate the significance of events and texts, which, beyond a broad relation to what our knowledge of the matter is, would be incomprehensible. On some occasions, we learn more from the way certain matters are being interpreted within the field of research, than from the mere analysis of the results of the research. Take, for example, today s interpretation of Kant s theory of punishment present in Edmund Krzymuski s work 11. We learn more about Krzymuski s own views and times than about Kant himself, whose philosophy we analyse nowadays through a different system of references. It is not hard to notice that in many views on punishment, in almost all legislations and juridical practice we can find traces of various, very often opposite concepts of punishment. The issue was illustrated by Juliusz Makarewicz who said that [...] the problem of retributive or rehabilitative character of punishment has been the warp and weft of the civilisation throughout its history 12. All classification of the theory of punishment is just a tool allowing us to bring order into the interpretations and into the human thought. Placing a certain concept of punishment under a certain category is on the one hand conventional, which does not mean that it 11 See: E. Krzymuski, Teorya karna Kanta ze stanowiska jego ogólnej nauki o rozumie praktycznym, [in:] Rozprawy i Sprawozdania z posiedzeń Wydziału Historyczno-filozoficznego Akademii Umiejętności, t. 16, Jagiellonian University Press under the management of Ign. Stelel, a publication of the Polish Academy of Learning, Cracow J. Makarewicz, Prawo karne ogólne, Cracow, Frommer 1914, p. 23.

11 Foreword 29 is arbitrary or random, and on the other hand it has a huge significance for interpretation. A category creates a context for further analysis of a particular concept, thus, in a sense it determines a range of references, i.e. a specific hermeneutic field, which opens new possibilities for interpretation. However, when the category is unapt, it stymies those possibilities. The awareness of those matters is of great importance in the studies on the theory of punishment, as their main objective is to use already existing work of research as the basis for further studies and presentation of the new penological knowledge. In order to meet the objective, academics relate to basic epistemological categories in classification of the theory of punishment, thus creating a new and adequate to the needs of the criminal law science and penology systematisation of the schools in the penal thought. The notion of penalty is presented in a synthesised way, but also as fully as possible, from the perspective of all categories of modern classification of the theory of punishment. It means that a justification for adopting such a perspective needs to be given as well as a characteristics of the categories in the following theories: imperative, instrumental, imperative and instrumental, penal negationism, humanist critique of penal practice, punitive populism and descriptive theories. In the interpretation of the theory of punishment it is a common thing to refer to already existing traditional classifications in order to explain differences among them and to show the benefits of going beyond the classical theories that were developed as far back as in the 19 th century, as they do not stay abreast of the evolution of the criminal law science and the penological knowledge of the 21 st century. Nowadays, they should be the subject of critical studies on the history of the penal thought. However, being acquainted with those theories and including them in the interpretation of the theory of punishment is important for understanding how modern science evolves. Nevertheless, it is the culturally integrated theory of punishment (developed from its broader context of culturally integrated definition 13 ) that allows a complex theoretic analysis of current views on punishment, their evolution and their proper new classification. 13 See: J. Utrat-Milecki, Principles of Penology...