Penology

Any act of affliction caused to the human being has always required substantiation. That is why it has always been sought to give a specific justification to punishment understood as a general legal and social practice and a case – based, specific action. The reasons for punishment, while discussed on specific case basis, always draw on general axiological foundations of the society, reflections on the good and the evil, morality, rationality, rightfulness, the vision of the human being and social order. Reflections on punishment, and specifically on criminal punishment, merge several general questions on the human being and society, and such discussions have been present since time immemorial in religion, in writings of philosophers and messages of artists. However, systematic penological studies developed as a result of attempted reforms of criminal justice system and of the execution of penalties undertaken but in 18th century. The aim of the reformers was to replace the punishment practice based on retaliation rhetoric with rational ideals of social rehabilitation and crime prevention. Their postulated and implemented changes aimed at grounding a rationally devised, comprehensive criminal and penitentiary policy on those enlightened foundations. The works of the 18th century reformers of criminal law and prison system – Cesare Beccaria, John Howard or Benjamin Bentham, to name but a few symbolical figures, were essentially sociological and philosophical penological studies, even if the expression itself was not used at that time. Only later, did dogmatic works prevail over reforming reflections of social and philosophical nature. Modern dogmatics, which for the sake of research balance, saw the need to set separate social studies of punishment, i.e. future penology, developed particularly from the works by Anzelm Feuerbach, dated at the turn of the 18th and 19th century. Penology, as a separate field of investigation and lecture, has also been shaped by practical discussions on the organization of the execution of penalty of imprisonment. Such reflections were pursued within prison studies carried out since the beginning of the 19th century, and studies on practical programs of influencing the convicted, which was an emerging idea at that time. These studies were later jointly named with the expression of penitentiary sciences. We may assume that in modern times, as in the Antiquity (e.g. in works by Plato and Aristotle) social and philosophical reflections on punishment preceded practical discussions on criminal law and on procedures and rituals of punishment execution. Historically, punishment was first studied as social phenomenon and philosophical dilemma, and penology became a separate field of research and of lecture only as a result of the emergence of specialist discussions in criminal law dogmatics and practically oriented penitentiary studies. It was but due to the development and institutionalization of the science of (dogmatic) criminal law and to the professionalization of penalties (imprisonment) execution, together with the subjugation of the process, at least partially, to scientific rigor, that the need appeared to separate penology as a subject of research and lecture. Since then any research on punishment as social phenomenon and philosophical dilemma would be carried out as but one more contribution to general social, philosophical and legal thinking, and more and more often stimulated by the needs of modern science of criminal law and penitentiary system. Modern science of criminal law, together with criminal policy and penitentiary science, which were in the 19th century emerging disciplines, needed solid theoretical grounds built on the accumulated knowledge of social sciences, legal sciences and humanities, institutionalized at that time at universities. Such knowledge was, to some extent, provided through lectures and publications of penology - a more or less distinct field of study since approximately half of the 19th century, and through the lecture of dogmatic criminal law and prison sciences.
However, since the end of the 19th century the influence of penology on criminal law became somehow limited due to the rapid development of positivist studies in etiology and phenomenonology of crime, i.e. in criminal anthropology and criminology. While those sciences had an important impact on the functioning of justice and its specific institutions, including the development of punishment organizational forms, they did challenge the very ideological foundations and the rationality of criminal punishment discourse, and thus the identity of penology. They grew in influence in the between – war period, and became dominant in three post war decades, which had significantly impaired the development of penology. The dominant positivist paradigm weakening in the seventies of the 20th century had a negative impact on the condition of criminal and penitentiary policies as they were loosing solid scientific foundation. According to theoreticians, since that time, penal sciences have been undergoing a serious cognitive and political crisis and loosing unequivocally established legitimacy. Such condition has contributed to the revival of penological studies and thinking since the end of the 20th century.
In Poland, the first handbook of criminal law had been written in 1830, Warsaw University by Romuald Hube, and it discussed criminal punishment from penological perspective, i.e. as a social institution (prison). Its substantiation and duration was eclectically associated with Hegelian dialectical science of the nature of social life and the State, interpreted in the context of catholic thinking, on the one hand, and with practical considerations on criminal and penitentiary policy, in the spirit of Cesare Beccaria and John Howard, on the other. At a later date, many prominent Polish scientists integrated penological questions into their lectures on criminal law. We may quote here such figures as Stanisław Budziński, professor at the Warsaw School of Economics (known also in humanities as the translator of works by Goethe, Schiller, Pushkin and Lermotov), Wacław Makowski, professor at Warsaw University and senator of the Second Polish Republic. Yet, we should mention first of all Juliusz Makarewicz, the most prominent Polish representative of the criminal law science in the 20th century, a leading co – author of the Polish Criminal Code of 1931 (named also Lex Makarewicz). Makarewicz wrote a penological work on historical and anthropological genesis of criminal law institutions, entitled “Einführung in die Philosophie des Strafrechts auf Entwicklungsgeschichtlicher Grundlage” and published in Stuttgart in 1906. Its Polish translation was published only in 2010, after more than one hundred years since its first German edition. Some would consider the edition date of this penological study as the beginning of the independent modern penology in Poland.
In Anglo – Saxon literature, the beginnings of penology as scientific discipline are associated with two distinct tendencies. Firstly, its development is thought to be stimulated by the reformist, humanitarian penitentiary thinking, and John Howard as a key figure. Secondly, its emergence is considered to stem from the development of modern criminal and penitentiary policy based on liberal utilitarianism, which aimed at the establishment of the foundations for socially and economically rational management of the society. In common view, the leading representative of the approach was Jeremy Bentham. In Germany, the genesis of penology is associated with the 19th- century prison reform program, on the one hand, and with the contemporary development of legal, criminal, anthropological and historical studies on the genesis of criminal law institutions, mainly of various organizational forms of punishment, including the penalty of imprisonment.
The very name penology appeared in scientific literature in the first half of the 19th century (not later than in 1838). Then, social-philosophical as well humanistic reflections on punishment became visibly autonomous in subject and methodology from the dogmatics of law and from practical prison studies. As a result, penology was more and more defined as including, for the purpose of research subject (punishment as social phenomenon) and for the purpose of academic lecture, various so- defined social and philosophical studies on criminal punishment. In some countries, such studies were resulting mainly from penitentiary reforms (e.g. England), in others, like Poland, from the lecture of criminal law, deeply rooted in social, historical and philosophical context. In Germany, they took an intermediate dimension and concerned mostly the history of criminal institutions of both substantive criminal law and of prisons. Independently of different shifts in the area of focus, the definition of the subject matter of penology became more and more refined: it pertained to criminal punishment as social institution and its different research levels (historical, sociological, legal, philosophical and penitentiary) which laid grounds for its methodology. Studies on criminal punishment as social institution carried out from historical - social perspective or philosophical - social perspective, or sociological, penitentiary - legal perspective, were defined as penological ones. The starting point of such research, whether these were theoretical generalizations on prison reforms, or social – philosophical general reflections on the evolution of punishment, criminal liability and sentence in substantive criminal law, was of secondary and minor importance for the identity of the discipline,. especially that the lecture on penology might be subject to a greater subject refinement, depending on the direction of scientific thinking. Within different research angles, it took the form of either theoretical, social and philosophical research on the notion of punishment, a sociological analysis of the institutions of justice, the historical description of penal ideals and criminal law institutions, or the interpretation of theoretical foundations for specific organizational forms of punishment and the measurement of their effectiveness in socio – criminological and penitentiary – pedagogical aspect. In historical terms, the scope and forms of institutionalization of penological topics as lectures and publications distinct from criminal law and prison sciences, remained heterogeneous and took different dynamics in different Western countries.
Penology – oriented studies were also included in several Polish works on criminal law, starting with the first Polish systemic lecture on criminal law by R. Hube, already mentioned in the paper, while the very name “penology” was finally adopted in Polish science of criminal law to define the studies of punishment as social institution only by Bronisław Wróblewski, who published in 1926, in Vilnius, two–volume work entitled “Penology: Sociology of Punishment”.

Franz von List, who is deemed to be the founder and one of the leading representatives of the sociological school of criminal law (dated at the turn of the 19th and 20th century), stated that penology aims to define criminal punishment and to establish how it differs from other measures of social control. The similar view on the subject of penology was shared by Bronisław Wróblewski. According to these two authors, the aim of penology is to establish real, socially tangible nature of sanctions defined as criminal punishment and not solely to study logical and linguistic, systemic and aim – oriented interpretation of regulations setting such sanctions. Thus, penology differs from the science of substantive criminal law, law of criminal proceedings and executive criminal law by not being a dogmatic science of legal norms. Penology includes normative aspects of criminal punishment, but normative and linguistic penological studies on purely dogmatic analysis of regulations are dominated by the analytical research on language carried out for the purpose of further studies on punishment as social phenomenon (analytic philosophy) institutionalized in legal provisions. It is only at the very last stage of such research that penology combines the science of substantive criminal law, law of criminal proceedings and executive criminal law, as it takes into account the results of the analyses made within the dogmatics of criminal law. Penology is then an auxiliary discipline of the science of criminal law (the core of penal science is made of dogmatic studies), but at the same time carries for such science a fundamental meaning, by defining its foundations. These are:

1. First of all, ontological foundations, i.e. those pertaining to the real existence (action) of the criminal punishment institution and of the whole criminal law in their different dimensions: normative, sociological, psychological, historical, cultural and economic;
2. Secondly, axiological foundations, i.e. those related to the substantiation of criminal punishment and of the whole criminal law, and, in consequence, indirectly to their political legitimacy.
3. Thirdly, epistemological foundations, defining research on criminal punishment and criminal law in the light of different research methods.

Penology endeavors to give, within a given perspective, the comprehensive justification and description of the punishment system, by interweaving epistemological, ontological and axiological threads.
Penological thinking was mainly forged on the basis of some general social vision of punishment and its various forms, in particular the penalty of imprisonment. Originally, i.e. in the 19th century, ideological involvement and general sociological – philosophical reflections were combined with detailed penitentiary studies. The progressive development and professionalization of each and every stage of punishment execution led to the emergence of more specialized studies on specific aspects of punishing. This caused a horizontal split into, for instance, penitentiary pedagogy and psychology and politics and science of penitentiary law, and a vertical split into general studies on social process of punishment (penology) and disciplines focused on selected aspects of professional execution of punishment (penitentiary sciences).
While penitentiary sciences are accurately classified among criminological sciences, penological studies are directly more close to the philosophy of criminal law and reflections on the most general foundations of criminal punishment in its cultural and social, historical and philosophical context. In this sense, penology is an autonomous sub – discipline of the science of criminal law, and means an interdisciplinary approach to a defined subject matter, which is criminal punishment as a social phenomenon.
Similarly to Anglo – Saxon tradition, some Polish sources consider penology as a sub– discipline of criminology. This approach contradicts Polish tradition in the development of penological studies, but the argument of tradition should not prevail over the arguments of content. It may be claimed that some works began to confuse the scope of penology with the scope of specific studies on the execution of penal sanctions, which in Poland fall into the scope of differently defined penitentiary sciences (including penitentiary law and policy). This confusion between criminology and penitentiary sciences should be seen as the fruit of the period of dominance of positivist paradigm in social sciences school in criminology, and simultaneous crisis of the philosophy of punishment in the science of criminal law, which lasted since the beginning of the 20th century until approximately the turn of the seventies and eighties of the 20th century. At that time, the major activity was shifted from the development of the theory of punishment to challenging the foundations of criminal law and searching alternative forms of dealing with social phenomena defined by criminal law as crimes. The tendency was to develop specific penitentiary studies necessary for practical execution of different organizational forms of punishment and empirical studies in criminal policy and criminology. Simultaneously, much neglect was caused to scientific thinking on their theoretical grounds in the science of criminal law as such grounds were thought to be beyond the scope of penal sciences. It is worth underlining that the present revival of interest in word literature in penology and philosophy of punishment has not been brought by the discovery of new, convincing rationalizations of punishment as social and legal institution. It is more the result of the assumption that the criminal punishment is an important institution of social life and, in consequence, considering social reality as such, it would be difficult to call its dusk. Criminal punishment as a category (institution) lying at the heart of criminal law continues to be an extremely important form of interference into the rights and freedoms of the individual, and its execution still misses unquestionable theoretical justification and axiological foundations. That is why criminal punishment may be claimed to be at present a tragic institution. It is tragic because, even if not sufficiently effective, it still seems to be a necessity in combating crime, and because, even if a long – time source of essential moral objection (as a form of affliction caused intentionally to the human being), it is maintained in the name of the ideals of morality and justice, so often raised in its defense. In practice, the return to penology, together with modern awareness of the tragic dimension of punishment, stems from the quest for alternatives to criminal punishment, in places where the condition of social and political relations and the sensitivity of soul give such opportunities. In that sense, there is no contradiction between the development of corrective justice studies, mediation studies or even the emergence of abolitionist thinking and movement, on the one hand, and penological research, which may give such tendencies a solid scientific foundation. In other, numerous instances, the evolution of penology fosters attempts to give the punishment a more humanitarian image, for example by devising penalties not involving loss of liberty or by civilizing the execution of imprisonment (development of international prison rules). This will have important implications because, as history shows, unreasonable abandonment of the institution of criminal punishment, instead of diminishing the scope and intensity of repressive measures may lead to their increase, which was spectacularly demonstrated to the world by the example of Guantanamo camps. It should be underlined that the question of the place of penology as a separate discipline within other penal sciences and the resulting definition of the scope of its interest has important scientific and teaching consequences. It is certainly not problematic either for science of for teaching whether the very term “penology” is used or not, as it is not problematic whether penology is classified as a sub – discipline of criminology or a separate discipline of the science of criminal law. What counts for science is whether the adopted solutions give rise to socially and scientifically important subjects. Similarly, what counts for teaching is whether the frame of topics in penology is defined in a way to adequately complement knowledge brought by other penal disciplines such as (dogmatic) sciences of criminal law, criminology, and particularly criminal and penitentiary policy. By limiting penology to some apparently erudite introduction to the proper, i.e. dogmatic, lecture of criminal law or to some short sociological and philosophical introduction to general considerations of criminology and penitentiary science we will lack in–depth studies on criminal punishment as social phenomenon and philosophical problem, and fail to transfer appropriate subject knowledge within didactic process. As a consequence, we will face “a penological gap”, seriously impairing any practical possibility to diagnose reliably the issues of the functioning of criminal law in legal and social system. Such approach hinders the full use of works in sciences of mankind, society and law which would help optimally devise, at a given stage of civilizational progress, the actions of those involved in different forms of social control, specifically within criminal justice system.
Penological theory of punishment should be, as it has already been stated by Bronisław Wróblewski and Leszek Lernell, an introduction to the science of criminal policy and penitentiary sciences. This theory depicts social and cultural context and controversial axiological foundations and limits of criminal punishment. This means that for the purpose of general thinking on criminalization (and penalization), on rules of criminal liability, general principles of awarding penalties as well as theoretical bases for their execution, penology may bring important contributions, translatable into more specific solutions in criminal policy. It may be helpful in establishing an axiologically and praxeologically coherent system of criminal law. Without such grounding, the actions of the State in criminal policy and penitentiary policy will loose their coherence, which may lead to both a decrease in the efficiency of fight against crime and the loss of political and axiological legitimacy of such actions.
Penology may be considered as some separate set of interdisciplinary subjects of scientific research on (criminal) punishment, including research on the bases of criminal liability, as well as a separate set of penology – oriented topics of teaching (theory and philosophy of punishment, sociology and anthropology of punishment, history of punishment, ideology of penal institutions etc.) selected for the purpose of didactics. In that way, the basic subject of interest of penology will be different organizational forms of criminal punishment as social institution in the context of culture and general organization of the society. From that perspective, penology will remain the theoretical foundation for research on the definition of sanctions (institutionalization) in legal provisions and their interpretation in the course of law application, as well as for the specific research on the execution of various organizational forms of punishment, first of all those executed in liberty (deprivation and restriction of liberty) carried out within penitentiary sciences. It combines the study of philosophical, ideological and cultural institutions of criminal punishment and the study of its real functions within criminal policy and within a broader socio – cultural, political, economic and institutional context.
Penology remains a modern discipline as it draws on works from other different fields, for the needs of its research and teaching. Thus, it bears an interdisciplinary and inclusive character; it includes different themes and research perspectives into the study of a multi – aspect theme, which is the criminal punishment. The dominance of legal and criminal thinking in penology does not come from any particular scientific weight of legal, and more broadly penal questions in penological studies; it is more that the social effects of penological studies and teaching of penology for students is primarily dependent on the needs of criminal justice. Criminal law and criminal justice are those two areas in which social effects of penological research and teaching, and, which is a more frequent case, social effects of the lack of penological activities of justice and of penological knowledge among those responsible for criminal policy and penitentiary policy of the State are most perceptible.