Riesman Review of Rusche and Kircheimer

Punishment and Social Structure by Georg Rusche; Otto KirchheimerReview by: David Riesman, Jr.Columbia Law Review, Vol. 40, No. 7 (Nov., 1940), pp. 1297-1301Published by: Columbia Law Review Association, Inc.Stable URL: http://www.jstor.org/stable/1117786 .Accessed: 04/05/2014 00:21

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BOOK REVIEWS 1297

results, many times its gestures are idle and sometimes harmful by any standard, often a success is cancelled by inconsistent action of some other kind, and sometimes the whole is engulfed by forces that even those on high Olympus may not control. The best this reviewer can offer is a Godspeed to Professor Wallace on his journey. He deserves that much even though there lingers a doubt as to whether the journey will yield many of the fruits that are sought. But it may yield some and for those we should be thankful. Public policy surely has need of order and de- sign. And it is hard to resist the appeal of the grand manner for point- ing these out even when it is known that the ways of public policy are wayward.

BRECK P. MCALLISTER*

PUNISHMENT AND SOCIAL STRUCTURE. By GEORG RUSCHE and OTTO KIRCHHEIMER, with foreword by THORSTEN SELLIN. New York: COLUMBIA UNIVERSITY PRESS, 1939. pp. xiv, 268. $3.00.

The authors of this book attempt to prove two points: first, that punishment in general is a function of economic conditions; and second, that the methods of punishment in use at any particular epoch depend on the available means of production and the state of the labor market. This ecumenical thesis is based on studies limited in time to the period from the close of the Middle Ages to the present day, and confined in space to Western Europe, Russia being completely, and the United States largely ignored. Since the purpose of the book is not to present original information but to elucidate a point of view, the authors have made no attempt at exhaustive first-hand study of original documents- though considerable use is made of statistics. The sources are mono- graphs by scholars working in specialized fields, and since many of these are available only in French, German, or Dutch, the authors have per- formed a useful service in bringing them to the attention of Americans.

The picture the authors present looks something like this: At the close of the Middle Ages, economic changes such as the decrease in soil fertility and the increase in population brought poverty and insecurity to large numbers of people. The exploitation of these masses, technologi- cal changes, and growing urbanism permitted a rapid accumulation of capital. Frequent punishments were necessitated to keep down the restless lower classes; brutal punishments (execution and torture) were inevitable because, due to the very surplus of labor which created the problem, there was no use which could profitably be made of the convicts'

* Professor of Law, University of Washington School of Law.


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labor power. Amelioration of punishment methods came about not at all through humanitarian efforts, but only because a shortage of labor and the rise of mercantilism made possible the houses of correction. The cruel galleys of France and the relatively successful colonial transporta- tion of England were similar responses to economic needs. The movement toward a predictable criminal law and procedure, which culminated in Beccaria and Bentham, is accounted for in terms of the class needs of the rising bourgeoisie: their need for protection against surviving feudal elements could thus be satisfied without admitting the poor to the benefits of the new criminal guarantees because of their lack of money to hire counsel or pay jail fees or fines. A chapter on the failure of solitary confinement cannot be adapted so easily to the authors' economic theses; the capable discussion of the fine in modern penal practice fits the thesis nicely: the fine is obviously the policy of capitalist countries. The recent attempt at improvement of penal methods by liberal reformers is limited by the need to keep the standard of living within prisons worse than that of the poorest stratum of society, and rehabilitation is ruled out by the ban on prison labor and the difficulty convicts have in finding work. On the other hand, the desire of Nazi and Fascist reformers to revert to long and barbarous sentences is equally limited by prevailing economic conditions, both by the fiscal expense of prisons and by the need, in Germany at least, to utilize all available labor. A final chapter on "Penal Policy and Crime Rate" attempts to show statistically that there is no relation between crime and severity of punishments, the conclusion being that crime, as well as punishment, is economically determined.'

Thorsten Sellin, in a brief, penetrating foreword, attempts to disarm criticism of this thesis: "Even those who may find in [the authors'] in- terpretation too strict a confinement to one point of view will find in this book a stimulant of thought which all too few publications in this field of research provide."2 No doubt, as Professor Sellin implies, many writers on penal theory are naively liberal. No doubt also, others simply gather data with no sense for the significant. It is surprising how few attempts have been made to employ a Marxian method either crude or subtle in the analysis of questions bearing on law. But I wish the authors had done more than oppose one extravagance with what seems to me to be another, useful as such opposition may be in the dialectical development of thought. Everyone knows that economic conditions are important factors in determining both crime and punish-

1On the lack of probative value of such statistics, see MICHAEL AND ADLER, CRIME, LAW AND SOCIAL SCIENCE (1933) .

,P. vii.


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ment. By now, surely, social scientists have a right to demand analysis of the plurality of factors, and an attempt to assign a proper weight to each.

The brutal punishments at the breakdown of the Middle Ages were of course rooted in part in economic insecurity. But environ- mental changes cooperated with the intensification of insecurity from another source: namely, Protestantism, which separated man from his fellows as well as his God by the doctrine of election, and separated him from himself by emphasis on his essential unworthiness. Religious teaching led men to welcome and increase the economic changes rather than resist or overcome them.3 This interaction of religious and en- vironmental factors is not a simple dialectical process: each strand in- fluences the others in a constantly changing pattern, as persons shape the culture which is shaping them. The torturing punishments of the fifteenth and sixteenth centuries, succeeding the mild penance and fines of the earlier Middle Ages, were not simply automatic responses to the new economic conditions; they indicated the sadistic consequences of deep psychic insecurity, of the widespread breakdown of Catholicism with its emphasis on charity, and its partial replacement by Calvinism, with its impersonality and its violent emphasis on ineradicable sin. Sim- ilarly, the movement of the Enlightenment toward objective criminal justice, with its defined scale of crimes and punishments, was reinforced by a competitive capitalism which dispersed power beyond the official organs of the state. But both impersonal justice and impersonal capitalism were parts of a larger rationalistic culture, which included the impersonal cosmos of Newton and the impersonal poetry of Pope- and many divergent elements as well.

The authors' oversimplification in these earlier periods is somewhat difficult to prove, since the perspective of historians often serves to give a unified appearance to past ages when diversity strikes one only in a close-up. When Drs. Rusche and Kirchheimer come to deal with Nazi penal methods, the extremism of their approach is more readily dem- onstrated.4 They argue that since capitalism has now become monopo- listic, that is, administrative, calculability of judicial action is no longer essential to the working, of the economic machine. On the contrary, adherence to law would permit the judge to impede the conquest of

'I rely on MAX WEBER, THE PROTESTANT ETHIC AND THE SPIRIT OF CAP- ITALISM (Parsons tr. 1930), whom the authors naturally discount. See also TAWNEY, RELIGION AND THE RISE OF CAPITALISM (1926); cf. 2 TROELTSCH, THE SOCIAL TEACHING OF THE CHRISTIAN CHURCHES (Wyon tr. 1931) 641-50, 915-18.

'The wide variations, which the authors do not examine, in American penal policy today (see, e.g., Sellin, Penal Institutions (1934) 12 ENCYC. Soc. SCI. 57-59) can certainly not be explained by any formula.


1300 COLUMBIA LAW REVIEW

power by the new dominant group. It follows that liberal procedural and substantive guarantees have been completely overthrown, with law and punishment determined from case to case, under the screen of the folk-conscience. These assumptions are challenged by Dr. Ernest Fraenkel, a lawyer in Berlin until 1938, whose book, The Dutal State) is fully documented. Dr. Fraenkel shows that the Nazis have carefully preserved the independence of the regular courts for the ordinary run of cases; this has been precisely because life, including economic life, could not go on without a measure of predictable guarantees. The Nazis have, to be sure, set up side-by-side with the traditional system of courts and prisons an administrative system of secret police and con- centration camps, but within their sphere the judges have often cou- rageously insisted on their right to follow the old statute law rather than the declared wishes of the Party officials. Moreover, Nazi brutality, like post-medieval brutality, has roots in insecurities which are only partially economic. Totalitarianism has intensified the secular deflation of individual personality inaugurated by modern science and urbanism; the scapegoats are the same as four centuries earlier-outlaw criminals and Jews. And Hitler has encouraged his officials in sadism as a means of binding them to his regime by feelings of guilty participation.

It is obvious that the drift of the book is fatalistic: nothing can be done about crime or punishment without a radical change in the entire social system. Penal reform is a mirage. The Nazi farewell to reform is equally illusory. About this view there are two things to be said. In the first place, it is not likely that persons other than some criminologists take crime seriously enough to be willing to risk a change to a new social order simply in the hope of getting rid of deviational conduct. Con- ceivably, we might get rid of larceny by changes in property relations, and the book is in that sense a book about larceny: the authors do not seem to think crimes of violence have any special problems, and they fail to tell us what kind of a culture that culture would be that ex- hibited no deviational conduct.5 In the second place, a fatalistic attitude towards the penal problem is not wholly warranted. Of course, self-in- terest and idealism must combine to get anything done. But marginal improvements can be made, and, as the Nazis show, marginal reactions too. Failure to attempt such improvements or oppose such reactions would have repercussions beyond the criminal field. We are all of a piece, and a fatalistic or brutal attitude towards any sector of our problems must have carry-overs in all other sectors as well. Contrariwise, even relatively futile attempts to reform the criminal law accustom

'One of the questions so insistently posed by Professor Lynd in his fine book, KNOWLEDGE FOR WHAT? (1939).


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society to an attitude of responsibility to all its members, and cherish the values of humanity and democratic education.6 These are the atti- tudes and values which tend to create a proper milieu for seeking more fundamental changes in society.

DAVID RIESMAN, JR.*

' Cf. Michael, Book Review (1935) 44 YALE L. J. 908, 912-13; Dession, Psy- chiatry and the Conditioning of Criminal Justice (1938) 47 id. at 319, 339-40.

* Professor of Law, University of Buffalo Law School.

NEW YORK ELECTION LAW MANUAL WITH FORMS. By LEWIS ABRAHAMS. NEW YORK: H. WOLFF BOOK COMPANY (distributed by Edward Thompson, Brooklyn, New York) 1939. pp. 274. $5.00.

This manual represents the product of several years' study devoted exclusively to election law cases. During the past three years, Mr. Abra- hams has been associated with the Law Department of the City of New York in election matters. Since that department acts as counsel to the Board of Elections, its files and office records constitute an invaluable source of first-hand materials bearing on election law problems and procedures.

The genesis of the present work is the best proof of its essentially utilitarian character. The author had prepared two legal memoranda summarizing the reported and unreported decisions in election law cases litigated during the period from September, 1934 to October, 1938. These memoranda were mimeographed in 1938 and 1939 by the munici- pal Law Department and distributed to ranking election officials and to the Supreme Court justices sitting in the five counties within New York City. The mimeographed memoranda were immediately found to be ex- tremely helpful; and the author was induced to revise and compile the memoranda into a book. The present manual is the result.

Practicality is the keynote of the manual, which makes no pretense of the kind of erudition commonly associated with "treatises." Its 177 pages of text and 81 pages of actionable forms are a handy pocket flashlight for the practitioner and not a microscope for the scholar. This explains both its virtues and its limitations.

The eight chapters of the book contain concise summaries of the statutory provisions and digests of the decisions dealing with the follow- ing general subjects: suffrage, party committees and committeemen, pe- titions, candidates, ballots, judicial proceedings, election boards, and proportional representation.

The need for this book is urgent. It arises out of the special conditions applicable to litigated election matters. Although there is peren-


Article Contentsp. 1297p. 1298p. 1299p. 1300p. 1301

Issue Table of ContentsColumbia Law Review, Vol. 40, No. 7 (Nov., 1940), pp. 1133-1308Front Matter [p. 1209-1209]Bankruptcy Reorganizations for Farmers [pp. 1133-1173]Sales Promotion by Premiums as a Competitive Practice [pp. 1174-1191]Corporate Agreements to Pay Directors' Expenses in Stockholders' Suits [pp. 1192-1205]The S. E. C. and Directors' Indemnity: Recent Developments [pp. 1206-1208]NotesThe Powers of Corporations and the Conflict of Laws [pp. 1210-1225]Fraud and Duress as Defenses of a Surety [pp. 1226-1240]

Recent DecisionsBankruptcy. Priority of Tax Claims. Social Security Contribution [pp. 1241-1245]Bankruptcy. When Debtor Must Proceed under Chapter X of the Chandler Act [pp. 1245-1251]Courts. Federal Court Not Required to Follow State Decisions Changing Law pending Appeal. Effect of Erie v. Tompkins [pp. 1251-1255]Domestic Relations. Injunction against Foreign Divorce [pp. 1255-1261]Fair Labor Standards Act. Tips as Wages [pp. 1262-1267]Libel. Defamation of Dead Person. Injury to Reputations of Surviving Relatives [pp. 1267-1272]National Labor Relations Act. Back Pay Order. Power of Board to Prove as Debt in Bankruptcy of Employer [pp. 1272-1276]Taxation. Federal Estate Tax. Meaning of "Retaining Right to Income" by Settlor of Trust. Effect of Douglas v. Willcuts [pp. 1276-1282]Torts. Right of Privacy. Magazine Account of Individual's Past [pp. 1283-1287]

Book ReviewsReview: untitled [pp. 1288-1292]Review: untitled [pp. 1292-1297]Review: untitled [pp. 1297-1301]Review: untitled [pp. 1301-1305]Review: untitled [pp. 1305-1307]

Books Received [p. 1308]

Documents

Riesman Review of Rusche and Kircheimer