| Book Review | Law and History Review, 21.3

Book Review

Richard F. Wetzell, Inventing the Criminal: A History of German Criminology, 1880–1945, Chapel Hill: University of North Carolina Press, 2000. Pp. xiv + 348. $ 39.95 (ISBN: 0-8078-2535-2).

Richard Wetzell has written a levelheaded book about a subject that resists dispassionate analysis, the history of German criminology through the Nazi period. In this engaging book, Wetzell conveys a vast amount of information, drawn from a variety of disciplines, in an accessible style. To retain his scholarly detachment, Wetzell favored the collection of historical data over their critical analysis. Given the nature of his subject, this attitude is both understandable and welcome, even though it places some concomitant limitations upon the book's ambitions and scope.

Wetzell traces the history of German criminology from its beginnings in the late nineteenth century, marked among other things by the reception of Lombroso's work on "criminal man" (first published in 1876) and Franz von Liszt's foundation of the (still-extant) Zeitschrift für die gesamte Strafrechtswissenschaft in 1881, through the end of the Nazi period. Along the way, the reader encounters a motley crew of phrenologists, psychiatrists, lawyers, and—of course—"criminologists," who generated a series of theories regarding the nature of crime and criminals that in turn motivated proposals for reform of various aspects of the German criminal justice system. We learn about the introduction of "the medical concept of degeneration" by a French psychiatrist in the 1850s (46), talk of an annual "budget of crime" long before Durkheim (21–22), the discovery of "moral sense" (or rather its absence, in the form of "moral insanity" or "congenital ethical insensitivity") (50, 53, 59–60, 193), proposals to abolish criminal justice and punishment in favor of treatment, on one hand (92), and to sterilize criminal offenders after the American model, on the other (100–5, 214, 237, 246–47).

The frequent reference in German policy debates to American reforms is one of the startling, and somewhat unsettling, discoveries of the book. Indiana's pioneering 1907 law calling for the sterilization of feebleminded individuals and "confirmed criminals" attracted particular attention. America's leadership role on this issue was attributed to the fact that here "the individual is not valued as highly as in other Kulturstaaten" (103).

Wetzell presents his book as an exercise in "intellectual history and the history of science, rather than social, legal-institutional, or political history" (2). This means, among other things, that Wetzell is not much interested in law. Unfortunately, this lack of interest in law occasionally translates into a certain uneasiness with legal concepts, which somewhat hampers an attempt to write the history of a field like criminology with considerable connections to legal inquiry.

German criminal lawyers played a central role in German criminology, as Wetzell makes clear; yet their views on criminal law—as opposed to their criminological excursions—remain largely unexplored. Von Liszt understandably gets most of the attention, since he early and often advocated criminology as a supplement to criminal law in a system of a comprehensive "criminal legal science." The famous—and influential, as well as controversial—doctrinalist Edmund Mezger appears only as the author of a book on criminology (209). The yet more notorious criminal law scholar Karl Binding appears not at all, even though he was Liszt's great adversary, and many of Liszt's central views were formed in response, or at least in contradistinction, to Binding's. In 1920, Binding also co-authored (with a psychiatrist) a much-discussed book on euthanasia, which might have warranted some attention (Karl Binding and Alfred E. Hoche, Die Freigabe der Vernichtung lebensunwerten Lebens [Leipzig: F. Meiner, 1920]).

Given Wetzell's a-legal approach to his subject, there is also very little discussion of criminal law doctrine. When he does turn his attention to questions of criminal law, the result is not always convincing, as when he attributes resistance to sterilization to the fact that it "was illegal in Imperial and Weimar Germany because it fell under the penal code's definition of bodily injury" (237, 247). Without more this observation does not explain much, because any use of force by the state—or an individual—against a person technically satisfies the definition of some crime, as Binding, among many others, was fond of pointing out. What distinguishes punishment from crime is not its prima facie criminality, but its justification. (Sterilization is, on its face, assault; so are a frisk and an arrest; likewise, searching a house is trespass, seizing property is larceny, imprisonment is "false imprisonment" and execution is murder.)

Similarly, from a legal perspective it's not immediately obvious that the exclusion of consensual assaults from the definition of assault—as opposed to their nonpunishability on grounds of justification—was, as Wetzell argues, "meant to legalize voluntary eugenic sterilization but not sterilizations for contraceptive purposes" (251). Sterilization ordinarily is not the first example of a consensual assault that leaps to mind. German criminal lawyers are more likely to think of bar room brawls and soccer tackles.

Perhaps more important, the absence of law also makes it difficult for Wetzell to account for one of the themes that run through the book, that lawyers were less eager to sterilize and euthanize offenders than were their medical colleagues. What was it about lawyers, or the law, one might wonder, that accounts for "jurists tend[ing] to be more critical of the eugenic agenda, especially as it concerned criminals" (265, 293) and, yet more remarkable, the Nazi (!) Justice Ministry's "trying to prevent the sterilization of criminals with whatever arguments seemed opportune" (259)?

Judging by Wetzell's account, critics of sterilization, and of euthanasia, appear, remarkably, not to have been motivated by a concern for defendants' rights, but by an interest in ensuring that penal policy rest on solid scientific ground (282–83, 289). Wetzell does hint, occasionally, that "liberalism" served as a check on the implementation of criminologically inspired policy programs (32, 86). But this label is not particularly helpful when it is applied to early nineteenth-century authors (like P. J. A. Feuerbach) or even early twentieth-century ones (like von Liszt); at any rate it can't very well account for resistance to sterilization after 1933.

The relationship between law and science is an important subject in general, and so is the relationship between criminal law and criminology in particular. Thinking about the latter relationship—especially as an instance of the former—faces several difficulties, however. To begin with, it's not altogether clear whether criminology is a science and, if it is, just what science it is, or what it is a science of. This of course requires some general account of "science." (An account of crime would also be helpful. Wetzell implicitly adopts a narrow definition that separates crime from deviance, and "'regular' criminals" from, say, "men convicted for homosexuality" [13].) The question isn't just one of definition, but of analysis. Wetzell's definition of criminology as the "scientific study of the causes of crime" (16) is problematic not only because it rejects other, perfectly reasonable, definitions (like the ones Wetzell cites himself, including "the study of criminals"), but also because no definition by itself could address the substantive question of the nature of criminology. This question is so difficult, and hotly contested, that criminology to this day spends much of its energy trying to define itself, and even doubting its own existence.

Further complicating matters is the fact that, in Germany, the other side of the relationship, law, is also considered a science. To say that German lawyers were more reluctant than German scientists to make law on the basis of science thus isn't saying much, unless one has some story to tell about the nature of science criminological and legal.

Wetzell's stimulating book, in sum, raises a number of big, and difficult, questions in the history of criminology and German legal history, the history of modern criminal law, and the history of science. It also assembles an impressive multidisciplinary pool of information that provides a solid foundation for their further exploration.

Markus Dirk Dubber

SUNY Buffalo

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