Women, Crime, and Custody in Victorian Englandby Lucia Zedner

American Society for Legal History

The Board of Trustees of the University of Illinois

Women, Crime, and Custody in Victorian England by Lucia ZednerReview by: Adrian HoweLaw and History Review, Vol. 14, No. 1 (Spring, 1996), pp. 128-131Published by: American Society for Legal HistoryStable URL: http://www.jstor.org/stable/827616 .

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Law and History Review Law and History Review

since law has been, as we used to say, "a drag," it is best that it be shunted into the background so that the other life-affirming moral orders of the indigenous communities in America may thrive.

I suppose that among those normative orders the white folks of Little Rock somehow do not count for much and that the moral life of the evangelical Christians who blockade abortion clinics does not count either. And then there are all the crazy tax evaders who claim a thousand exemptions and believe that the income tax is unconstitutional. I assume that their nomos is somehow deficient too; though, of course, they are the lineal descendants of the Vietnam War tax protesters. And what of the Aryan gun collector, shoot-em-up, the-end-of-the-world-is-going-to-be-race- war types. Each has its own, hardly pacific nomos. Nor can the nomos of these groups be explained as the result of the capitalism, racism, sexism, and homopho- bia so rampant in these United States. As two examples that Carol Greenhouse brings to the volume, the Ilongot of the Philippines and the Kaluli of Papua New Guinea, make clear, quite horrific normative orders exist elsewhere untainted by capitalism, at least.

What then is the lesson in all of this for historians? Just this. It is time that lib- erals of all stripes give up the notion that law is violence only when the stick comes down on the heads of their special political wards. Law visited violence upon the landowners under the Mill Acts, the slave owners under the Emancipation Procla- mation, the laborers in Coppage, and the school children in San Antonio. That you or I believe that in some of these cases the violence was right and in others it was wrong does not change the fact that law did violence in each, for that is what the law does. As Llewellyn put it, "Law is what these officials do;" these officials are the State and the State is organized violence. When we understand this fact our history will be immeasurably richer and our moral lives more complicated. But my guess is that such a result is one that Robert Cover would have approved of, whether he said it or not. Perhaps for saints understanding is enough. How would I know; I am only a historian.

John Henry Schlegel SUNY/Buffalo Law School

Lucia Zedner, Women, Crime, and Custody in Victorian England, New York: Oxford University Press, 1991. Pp. 364. $72.00 (ISBN 0-19-820264).

While the history of the imprisonment of men in western countries has been well served by traditional and social historians alike, the story of women's imprisonment remains largely unwritten. For example, as Lucia Zedner notes: "Very little history has been written about women's prisons in England" (98). Women, Crime, and Custody in Victorian England is her attempt to fill part of the gap in our knowledge. More specifically, the book aims to examine "how the Victorians perceived and explained female crime, and how they responded to it-both in penal theory and prison practice." The focus, in short, is on "the role of gender in determining attitudes and responses to criminality," or more particularly, to "female crime" (1).

since law has been, as we used to say, "a drag," it is best that it be shunted into the background so that the other life-affirming moral orders of the indigenous communities in America may thrive.

I suppose that among those normative orders the white folks of Little Rock somehow do not count for much and that the moral life of the evangelical Christians who blockade abortion clinics does not count either. And then there are all the crazy tax evaders who claim a thousand exemptions and believe that the income tax is unconstitutional. I assume that their nomos is somehow deficient too; though, of course, they are the lineal descendants of the Vietnam War tax protesters. And what of the Aryan gun collector, shoot-em-up, the-end-of-the-world-is-going-to-be-race- war types. Each has its own, hardly pacific nomos. Nor can the nomos of these groups be explained as the result of the capitalism, racism, sexism, and homopho- bia so rampant in these United States. As two examples that Carol Greenhouse brings to the volume, the Ilongot of the Philippines and the Kaluli of Papua New Guinea, make clear, quite horrific normative orders exist elsewhere untainted by capitalism, at least.

What then is the lesson in all of this for historians? Just this. It is time that lib- erals of all stripes give up the notion that law is violence only when the stick comes down on the heads of their special political wards. Law visited violence upon the landowners under the Mill Acts, the slave owners under the Emancipation Procla- mation, the laborers in Coppage, and the school children in San Antonio. That you or I believe that in some of these cases the violence was right and in others it was wrong does not change the fact that law did violence in each, for that is what the law does. As Llewellyn put it, "Law is what these officials do;" these officials are the State and the State is organized violence. When we understand this fact our history will be immeasurably richer and our moral lives more complicated. But my guess is that such a result is one that Robert Cover would have approved of, whether he said it or not. Perhaps for saints understanding is enough. How would I know; I am only a historian.

John Henry Schlegel SUNY/Buffalo Law School

Lucia Zedner, Women, Crime, and Custody in Victorian England, New York: Oxford University Press, 1991. Pp. 364. $72.00 (ISBN 0-19-820264).

While the history of the imprisonment of men in western countries has been well served by traditional and social historians alike, the story of women's imprisonment remains largely unwritten. For example, as Lucia Zedner notes: "Very little history has been written about women's prisons in England" (98). Women, Crime, and Custody in Victorian England is her attempt to fill part of the gap in our knowledge. More specifically, the book aims to examine "how the Victorians perceived and explained female crime, and how they responded to it-both in penal theory and prison practice." The focus, in short, is on "the role of gender in determining attitudes and responses to criminality," or more particularly, to "female crime" (1).

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Book Reviews

Given this focus on gender, one could be forgiven for expecting the analysis to be informed by feminist theoretical and methodological concerns. But sadly, the study is not undertaken from a feminist perspective or, indeed, from any discernible pro- gressive perspective, with the result that women prisoners in Victorian England remain locked behind the closed doors of the policy pronouncements and control discourses on which the study relies.

The book is written in three parts. The first examines "Victorian Views of Fe- male Crime;" the second examines "penal responses," including penological the- ories and "the reality" of prison life in the second half of the nineteenth century; the third focuses on reforms designed to remove "incorrigible" women from penal institutions at the turn of the twentieth century. One of the strengths of the book is that it demonstrates the kind of close empirical study necessary if we are to begin to transform our understanding of what counts as a properly "social" history of the prison in western countries. Not that Zedner claims to be writing a "social" history. The closest she comes to declaring a theoretical position is in her critique of revisionist historians such as Michael Ignatieff who, she argues convincingly, con- centrated too narrowly on penal ideology about national prisons such as Penton- ville, thereby overlooking the hundreds of local prisons that "constituted the prison experience of the vast majority of offenders, including women offenders" (4). As for Foucault, he is quickly dismissed for having taken "the vogue for concen- trating on penal ideology to its logical extreme," thereby missing "the reality of continuing administrative chaos and human error" (95).

If Ignatieff fell into the trap of assuming that the penitentiary prison was the dom- inant prison form, he did come to recognize that the revisionists had "over-sche- matized" the complexities of prison history. Zedner develops Ignatieff's "counter- revisionist critique" further in relation to evidence indicating that, long after the 1850s, English penal policy remained "a multi-faceted, often contradictory and always problematic" operation (97). Furthermore, the revisionists paid "insufficient attention to plain fact"-the fact, for example, of administrative disorganisation- and, most crucially, they "take no account of gender" or "the extent to which penal policy was differentiated by sex." Zedner clearly establishes that the Victorian prison was a place touched by "issues of gender" (97-100). In the chapter on women in local prisons between 1850-1877, one of the strongest in the book, she makes a persuasive case for paying attention to "plain fact"-the plain fact, in particular, that 98 percent of women receiving a custodial sentence in Britain in the second half of the nineteenth century were committed to local prisons (131). Female convict prisons are also examined in order to demonstrate how "perceptions of the female criminal and notions of femininity differentiated the nature and purposes of penal servitude for women" (174).

But we are getting ahead of Zedner's story, which starts with the question of "the extent of female criminality" in nineteenth-century England. Trained (by her doc- toral dissertation supervisor, Roger Hood) in the best British empirical tradition, Zedner milks the recalcitrant Judicial Statistics for statistical detail on women's crimes-detail admirably reproduced in the tables in the appendix. We learn that women constituted a much larger proportion of the prison population in the nineteenth century than they do today. In the second half of the nineteenth century,

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Law and History Review

"women's crimes made up a steady 17 percent of all summary convictions," whereas they formed a declining proportion of indictable offences, falling from 27 percent of the total in 1857 to 19 percent by 1890 (34-36). But although informative, the statistics are sometimes left unexplained. For example, it would be useful to know more about how women could have formed 40 percent of those tried for murder, beyond being told that in the last decades of the nineteenth century statistics for infanticide were separated from the general murder statistics (38). Who else were women killing and in what context?

A still greater problem exists, however. Throughout the book there is a tension between the age-old positivistic obsession with "plain fact" and a recognition that crime is a social construction-the product of changing legislative practices and criminalization processes. This tension is manifested in the attempt, on the one hand, to measure "the real" extent of "female crime" and, on the other, an empha- sis on the discursive effects of changing social control processes. Thus, for example, women are said to have "actually outnumbered men in the class of most hard- ened-so-called 'habituals' who had ten or more convictions," yet "habituals" is manifestly a legislative category. As for the highly gendered category of the "feeble-minded"-a category that screams out for a feminist deconstructive reading- Zedner not only fails to problematize it; she asks whether women were "actually more commonly mentally deficient or were they more likely to be diagnosed as such" (5-7). Consequently, after supplying the crucial information that the 1913 Mental Deficiency Act provided that any unmarried woman receiving poor relief when pregnant, at the time of giving birth was "automatically classified as feeble- minded," Zedner lapses into describing the incarcerated women as feeble-minded, "mentally deficient," and even "dangerous female defectives" (185, 295). Only at the very end does the issue of "the social construction of images of deviant women" (296) return to haunt a book which is concerned throughout to determine "the real extent of mental defect among women prisoners" (281) and the "real extent," more broadly, of "female crime."

Furthermore, the positivistic historian characteristically resorts to the passive tense, thereby concealing the agents of historical change. If there were "profound fears about the health of the nation" at the end of the nineteenth century, we need to know who, exactly, were so fearful, and what were the political and social effects of their fears? As for the women on the receiving end of all this penal policy, they never come to life in the text. They are refractory, uncontrollable, and "un- feminine" in the various penal institutions, but never resistant. The question of their agency is never addressed. Invoking Rusche and Kirchheimer's famous injunction to describe the "real relationships" of the punishment system, Zedner describes the book as "the history of women in local prisons not only from above but, more ambitiously, from 'within"' (132). But she is oblivious to their equally famous directive to break the bond between crime and punishment in order to study punishment in its own right (Georg Rusche and Otto Kirchheimer, Punishment and Social Structure [New York, 1939], 5). Oblivious, too, to current feminist theoretical interrogations of the "Woman Question," Zedner fails to evoke the terrible inwardness of the prison experience of women in Victorian England. However, it is not clear that she seriously intended to write a history from "within." Finally,

130



Book Reviews Book Reviews

the whole project of studying crime in relation to punishment is deeply problematic, as Zedner's study demonstrates.

Adrian Howe La Trobe University, Melbourne

Piers Beirne, Inventing Criminology: Essays on the Rise of 'Homo Crim- inalis,' Albany: State University of New York Press, 1993. Pp. xii, 274. $57.50 cloth, $18.50 paper (ISBN 0-7914-1275-X).

Marie-Christine Leps, Apprehending the Criminal: The Production of Deviance in Nineteenth-Century Discourse, Durham: Duke University Press, 1992. Pp. 262. $45.00 cloth (ISBN 0-8223-1255-7), $15.95 paper (ISBN 0-8223-1271-9).

Professional communities' self-renderings of their histories have in the past few decades come under severe interrogation. At the same time, poststructuralism and cultural studies have raised questions about former assumptions of objectivity, factuality, and science, particularly as they apply to the study of human affairs. Given these trends in intellectual life, the history of criminology has been over- due for thoroughgoing revision, both as a professional discipline and a general category of social thought. Whereas every nook and cranny of the criminal law's history has in recent years been problematized, the history of its companion social science has only begun to be touched by revisionist scholars. (See, for example, the work of David Garland: Punishment and Welfare: A History of Penal Strategies [1985] and "British Criminology Before 1935," British Journal of Criminology 28 [Spring 1988]: 131-47.) The two books under review demonstrate that this period of neglect has ended; they are, respectively, minor and major ventures in such revision. Piers Beirne reexamines some landmark works in the history of criminology, finding rather different meanings than those long accepted within the discipline. Marie-Christine Leps investigates that mode of knowledge as part of a more general "discourse of crime" expressing itself also through jour- nalism and fiction. Focusing on a particularly decisive period in the late nineteenth century in France and Britain, she attempts to rethink how the very category of "the criminal" has been constructed and what that construction process reveals about modern society and culture.

Beirne's method is that of intellectual history, aiming to recapture original in- tent-an approach familiar enough to the legal scholar, though surprisingly not often employed upon criminological writings. He closely rereads some key texts of a number of "founding fathers" of criminology, clearing away the encrustations laid down by later disciplinary developments as he seeks to restore them to the specific context of the philosophical, ideological, and political "conditions of intellectual production" of their times. Beginning with Cesare Beccaria's On Crimes and Punishments (1764) and closing with Charles Goring's The English Convict (1913), he gives a series of fresh readings of standard texts, complicating an ac-

the whole project of studying crime in relation to punishment is deeply problematic, as Zedner's study demonstrates.

Adrian Howe La Trobe University, Melbourne

Piers Beirne, Inventing Criminology: Essays on the Rise of 'Homo Crim- inalis,' Albany: State University of New York Press, 1993. Pp. xii, 274. $57.50 cloth, $18.50 paper (ISBN 0-7914-1275-X).

Marie-Christine Leps, Apprehending the Criminal: The Production of Deviance in Nineteenth-Century Discourse, Durham: Duke University Press, 1992. Pp. 262. $45.00 cloth (ISBN 0-8223-1255-7), $15.95 paper (ISBN 0-8223-1271-9).

Professional communities' self-renderings of their histories have in the past few decades come under severe interrogation. At the same time, poststructuralism and cultural studies have raised questions about former assumptions of objectivity, factuality, and science, particularly as they apply to the study of human affairs. Given these trends in intellectual life, the history of criminology has been over- due for thoroughgoing revision, both as a professional discipline and a general category of social thought. Whereas every nook and cranny of the criminal law's history has in recent years been problematized, the history of its companion social science has only begun to be touched by revisionist scholars. (See, for example, the work of David Garland: Punishment and Welfare: A History of Penal Strategies [1985] and "British Criminology Before 1935," British Journal of Criminology 28 [Spring 1988]: 131-47.) The two books under review demonstrate that this period of neglect has ended; they are, respectively, minor and major ventures in such revision. Piers Beirne reexamines some landmark works in the history of criminology, finding rather different meanings than those long accepted within the discipline. Marie-Christine Leps investigates that mode of knowledge as part of a more general "discourse of crime" expressing itself also through jour- nalism and fiction. Focusing on a particularly decisive period in the late nineteenth century in France and Britain, she attempts to rethink how the very category of "the criminal" has been constructed and what that construction process reveals about modern society and culture.

Beirne's method is that of intellectual history, aiming to recapture original in- tent-an approach familiar enough to the legal scholar, though surprisingly not often employed upon criminological writings. He closely rereads some key texts of a number of "founding fathers" of criminology, clearing away the encrustations laid down by later disciplinary developments as he seeks to restore them to the specific context of the philosophical, ideological, and political "conditions of intellectual production" of their times. Beginning with Cesare Beccaria's On Crimes and Punishments (1764) and closing with Charles Goring's The English Convict (1913), he gives a series of fresh readings of standard texts, complicating an ac-

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Documents

Women, Crime, and Custody in Victorian Englandby Lucia Zedner