Book Review

Richard Evans has written the definitive social history of capital punishment in post-medieval Germany. Covering the years 1600 to 1987, Rituals of Retribution is easily the most significant achievement in the field of the history of German criminal justice since the publication of Eberhard Schmidt's Einführung in die Geschichte der deutschen Strafrechtspflege (3d ed., Göttingen: Vandenhoeck and Ruprecht, 1965). Unlike Schmidt, Evans is not a criminal lawyer. His is a study of practice—it is social history, not the history of doctrinal developments. Nor is it a history of ideas. In particular, Evans distances himself from the work of Michel Foucault and Norbert Elias (and that of their "followers" and "disciples"). Evans's massive book puts these two great hypothesizers to the archival test, which both fail miserably. In his careful study, Evans cites internal memoranda, newspapers, and folk songs, rather than codes, law opinions, treatises, or other scholarly texts. So we learn about the excruciating details of execution rituals (and the similarly horrific deeds of their central characters), the salary, dress, and equipment of executioners (and their assistants), and the vote splits in criminal code revision commissions.	1
Not unlike another recent expansive study of the history of capital punishment in England (Victor Gatrell, The Hanging Tree: Execution and the English People, 1770–1868 [New York: Oxford University Press, 1994]), Evans's contribution is breathtaking in the accumulation of otherwise inaccessible information (complete with a substantial statistical appendix) about the infliction of a particular penalty. Through his tireless work, Evans thus has laid the foundation for much future work in the history of punishment as well as in social and political theory.	2
Evans's discovery that neither Foucault's nor Elias's theory fits the archival evidence is, of course, not new. He does not stop there, however. Rather than confront Foucault or Elias on their high road of theory, Evans proceeds to subject their musings to his trusted tools of sober social historical scrutiny. Having archivally disproved Foucault's and Elias's abstract claims, Evans sets out to explain why these men might have arrived at their demonstrably wrongheaded ideas. So, in a collage of references to the work of other scholars, Evans identifies the factors—individual, intellectual, and historical—that "help explain why Foucault's vision of early modern punishment was so distorted," among them "elaborate and extreme forms of sado-masochism in the gay bathhouses and clubs of San Francisco" (883), along with Nietzsche, de Sade, Marx and Mao ("who were the book's spiritual godfathers and presided over its inception" [884]), and "the political struggles during the 1970s" (885).	3
The "German sociologist" (12) Elias, "writing in exile from Hitler's Third Reich, in 1939" (891), suffers a similar fate. After noting in passing the facile criticism of Elias's theory as "implicitly justif[ying] racism and imperialism" because it "necessarily implies that non-European indigenous peoples living in stateless societies are somehow closer to the animals, somehow less human" (892), Evans reveals Elias's archivally disproved theory as "a tremendous attempt to achieve a historical and intellectual understanding of the process that led to his own exile from the country in which he was born, to the death of his mother at Auschwitz" (897). Sympathizing with Elias, Evans concedes that "we might wish to use the word 'barbarism' to express our moral disapproval of the Third Reich" (897), but a theory of the civilizing process, which brands the Nazis as an anachronistic deviation, simply does not withstand archival scrutiny, no matter how much the archivist Evans might have wished it could.	4
The problem with Foucault and Elias, it turns out, is that they are not real historians. So Evans catches Foucault in the admission that "the subject that interested him was not simply the past . . . but rather . . . 'writing the history of the present'" (886). Similarly, the "sociologist" Elias, similarly uninterested in the study of the past for its own sake, "sought to reinstate [Western European values] as the basis of a civilized society and to insist on their universal validity" (891). To the extent that Foucault and Elias can be said to engage in historical work at all, they followed "a kind of history of ideas approach," whose "inadequacies . . . have long been apparent," at least so Evans tells us, on the strength of a citation to a collection of essays on Wilhelmine Germany he edited some years ago.	5
In contrast, Evans is doing real history, history in the trenches, social history. Evans searches for truth in the dusty yet tangible archives with a marvelous methodological and epistemic earnestness. Thanks to his remarkable naïveté, Evans avoids the troubling recognition that he seeks the truth about, among other things, an institution of truth seeking called the criminal process, the history of which is also the history of different and changing conceptions of truth, as every second-year law student knows.	6
More problematic for Evans, his unreflected conception of truth also hampers his hard-core archival reportage of criminal cases. Take, for example, his extended coverage of a celebrated Weimar death penalty case, consisting mainly of a description of a series of investigations over the course of a decade, during and after the trial. These investigations produced a mountain of inconsistent evidence and, most important, a series of inconsistent witness statements, including a string of confessions. More than six decades later, Evans manages to do what contemporaries found impossible: he extracts from the evidentiary morass the one true confession, which—like so many others—was later retracted, reinstated, and retracted again (584). On what evidence? The report of the officer in charge of the interrogation. Evans quotes this report at great length and without the slightest hint of suspicion, including colorful accounts of the "birth-pangs of the approaching confession," which included the witness putting out his pipe, sobbing, and rolling on the floor, only to "recover and . . . to tell the truth at last." Evans's account concludes with the following remarkable passage: "over several more sessions the true story was gradually wheedled out; not by threats or promises, still less by physical intimidation, but rather by ceaseless, patient, and endlessly wearying, detailed questioning."	7
This passage displays an uncritical naïveté that betrays a troubling unfamiliarity with the law and practice of criminal procedure, and police interrogation in particular, anywhere, anytime. Blind trust in the discoverability of truth in historical scholarship and in the criminal process is one thing. Unquestioning trust in the reliability of the German criminal process over the centuries in discovering that truth is quite another. Together they seriously compromise any work of legal historical scholarship.	8
Evans may be right that Foucault and Elias had an insufficient "knowledge of social history" (900). Certainly, Evans's tome contains a lot of social history. Yet it falls flat even on its own social historical terms. The idea of a social history based on archival research covering four centuries is absurd; it does not help matters if it is the history of a social entity called "Germany," which underwent such drastic changes over the four centuries of Evans's study as to render a single treatment either useless or impossible (where something analogous might be said about "punishment," the complex and ever-evolving practice whose history is being described). Evans's approach would appear to be more appropriate to the far more geographically, temporarily, or socially modest focus of other social historical work. As a result, Evans's huge book remains a collection, arranged in rough chronological order, of summaries of archival sources. As such, it will prove useful to future scholars wishing to save themselves a trip to the dozens of "German" archives plumbed by Evans.	9
A more serious, though more deliberate, limitation of Evans's work lies in his lack of familiarity with (not to mention interest in) the doctrinal and theoretical aspects of his subject. It is simply impossible to write any history (social or otherwise) of a legal practice, in this case a particular infliction of punishment, without a solid understanding of the law. This Evans does not have. For example, he repeatedly confuses the substantive doctrine of insanity, which turns on a diagnosis at the time of the offense, with the procedural doctrine of incompetence to stand trial, which turns on a diagnosis at the time of the trial and applies a completely different test (249, 481, 533). Evans is foggy on crucial doctrinal matters, such as the obviously central distinction between the various degrees of homicide (281, 288, 369) or the nulla poena principle (502–3, 622–23). Most annoying to a criminal law professor like myself, Evans completely ignores criminal law scholarship. Perusal of the world-renowned body of German Strafrechtswissenschaft would have equipped him with the conceptual tools to connect and explore, for example, his vague references to the distinction between "penal policies . . . directed at the person of the offender" and those directed "at the offence itself," i.e., the traditional distinction between Täterstrafrecht and Tatstrafrecht that has occupied the minds and pens of generations of German commentators (e.g., 649–50, 690).	10
Evans is as ignorant of German criminal law theory as he is of German criminal law doctrine. One cannot write a history of modern German punishment without an extensive discussion and a thorough understanding of the work of Kant and Hegel. Of the more than one thousand pages in Evans's book, the discussion of Kant and Hegel occupies fewer than two, smothered between archival sources exploring the reactions of spectators at Berlin executions around the year 1800 (197–98). The work of "the great philosopher Immanuel Kant," who deserves Evans's attention only because his "work was widely read within the German bureaucracy in the first half of the nineteenth century," appears in a brief quote from a minor work, his Anthropology(!), about "the sympathetic effect [of public executions] on the spectators." Plus, Evans reports on Kant's dismissal of Beccaria (again in a quote), followed by some highlights of his theory of punishment (where it turns out that he "like Goethe [!?] . . . supported the idea of full retribution"), culminating in the most often quoted—and least often understood—passage from the Rechtslehre categorically demanding the execution of all criminals prior to the dissolution of an island community.	11
Kant, however, fares better than Hegel (identified merely as Kant's "fellow philosopher" and "an immensely influential teacher at the newly founded Berlin University in the 1820s"). Evans's coverage of Hegel is limited to less than a paragraph, where it is revealed that he "insisted in his dialectical fashion" that "crime . . . was the negation of the law; punishment therefore could only be seen as the negation of the negation, a retribution that had to be equivalent to the offence in order to restore the integrity of the law that had been contradicted." Readers who wish to make sense of this incomprehensible nutshell of the most influential theory of punishment in the history of German criminal law find nothing more than a citation to the Philosophy of Right in its entirety (198).	12
These caricatures of the work of the two men whose thought shaped—and occasionally suffocated—German criminal justice over the past two hundred years simply will not do. While Evans may not have found citations to Kant and Hegel in newspaper articles, office memoranda, folk songs, and broad sheets, a more careful study of their work might have revealed to him their pervasive influence even in these texts. It is only his ignorance of the scholarly literature on criminal law that can account for his failure to see the importance of Kant and Hegel. (This ignorance by itself is, of course, inexcusable, given the considerable influence of academic commentators on German criminal law since the emergence of German Strafrechtswissenschaft in the first half of the nineteenth century.) If he had read this literature, he might have come across a much-cited article entitled "Farewell to Kant and Hegel," which called on German criminal law to shed its foundation on the work of these two men. The article was written in 1968. And its title has remained wishful thinking, as even a quick glance at recent scholarship and jurisprudence, or for that matter at parliamentary debates or newspaper columns, would reveal.	13
Resistance to Kantian and Hegelian influence on German criminal law is as old as Kantianism and Hegelianism. Beginning in the late 1800s, Franz von Liszt's well-coordinated sociological school in particular established itself as an alternative approach to criminal law scholarship and criminal justice policy. Evans, however, fails to appreciate either the orthodoxy or its critique. To characterize Liszt's proposals as an attempt to bring back "the Prussian practice of special deterrence" (435) is a gross and anachronistic mischaracterization of Liszt and his followers. (Liszt, however, might have taken some solace in Evans's referring to Karl Binding, the celebrated originator of norm theory in German criminal law and Liszt's great adversary in the famous Schulenstreit between retributivists and preventionists, as a "medical scientist" [535].)	14
Evans's failure to familiarize himself with the Kantian and Hegelian underpinnings of German criminal law is particularly unfortunate because Foucault has nothing to say about this subject. Foucault reduces the Enlightenment's theory of punishment to prevention through deterrence. (Discipline and Punish is a prolonged meditation on that theory's totalitarian potential.) The work of Kant, Hegel, and Fichte, who gets even shorter shrift in Evans's book than Hegel (198), reveals a retributive aspect of German Enlightenment punishment theory that would have warranted further exploration in a book on German punishment dedicated largely to the refutation of Foucault's Francocentric speculations.	15
These limitations, however, cannot obscure the breathtaking scope of Evans's research, which took him to scores of archives throughout Central Europe. By giving us a glimpse at a dizzying array of primary sources, Evans has laid the foundation for decades of future research. In the end, Evans's book stands as a remarkable scholarly achievement that will set the standard for large scale social histories of German criminal justice.	16
Markus Dirk Dübber State University of New York at Buffalo

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