Six Centuries of Criminal Law

Jos Monballyu is Professor of Legal History at the Law Faculty of the University of Leuven (Belgium). He has published several books and articles on the history of criminal law in the Southern Netherlands, Belgium and the north of France. Translation by Line Leys

List of Tables ... ix

1 Introduction ... 1
1 A History of Criminal Law ... 1
2 The ‘Grand’ Theories Explaining the History of Criminal Law ... 3
2.1 The Importance and Basic Principles of the Different Theories ... 3
2.2 The Rationalistic Theories ... 4
2.3 The Germanic School ... 6
2.4 The Theories of Force or Power ... 6
2.5 The Civilisation Theories ... 12

2 The Sources of Criminal Law ... 15
1 The Local Legal Rules in the Fifteenth to Eighteenth Centuries ... 15
2 The Monarchical Decrees of the Fifteenth to the Eighteenth Centuries ... 16
3 The Administration of Justice, Legal Doctrine and Roman Law before the French Revolution ... 17
4 Criminal Law in the Nineteenth and Twentieth Centuries ... 22
4.1 The ‘Cahiers de doléance’ in 1788–1789 ... 22
4.2 The First Reforms of Criminal Law (1789–1791) ... 23
4.3 Criminal Law in 1791 ... 24
4.4 The Subsequent Criminal Law between 1791 and 1808 ... 26
4.5 Old Wine in New Bottles. The ‘Code d’instruction criminelle’ (1808) and the ‘Code pénal’ (1810) ... 27
4.6 A Variation on a Variation. The Belgian Penal Code of 1867 ... 30
4.7 From ‘Homo Economicus’ to ‘Homo Criminalis’ and ‘Homo Sociologicus’ ... 33

3 Criminal Justice ... 37
1 From Private to Public Criminal Law ... 37
1.1 Right of Revenge and Family Solidarity before the Eleventh Century ... 37
1.2 Developing a Public Criminal Law from the Eleventh Century Onwards ... 39
1.3 A Fully Fledged Public Criminal Law from 1500 Onwards ... 41
2 Criminal Judges (Un)restrained by Criminal Law ... 42
2.1 A Formulation of the Problem ... 42
2.2 The Ascendancy of the Judge ... 42
2.3 The Ascendancy of the Legislator ... 45
2.4 Towards a Balance between Legislator and Judge ... 48
3 The Apparatus of Criminal Law in the Southern Netherlands ... 50
3.1 Introduction ... 50
3.2 The Ordinary Courts ... 51
3.3 The Extraordinary Courts ... 55
3.4 Ecclesiastical Administration of Criminal Justice ... 57
4 The Apparatus of Criminal Law after the French Revolution ... 60
4.1 Judicial Reforms Until 1795 ... 60
4.2 Judicial Reforms under the Directory, the Consulate and the Empire (1796–1815) ... 62
4.3 The Apparatus of Criminal Law under Dutch and Belgian Rule ... 63

4 The Offences in General ... 64
1 Punishable Behaviour ... 64
1.1 Human Behaviour? ... 64
1.2 Acts of Commission, Acts of Omission and Acts of Commission by Omission ... 67
2 Criminal Guilt ... 70
2.1 The Concept of Criminal Guilt ... 70
2.2 Criminal Accountability ... 70
2.3 Criminal Culpability ... 70
3 The Punishable Attempt ... 75
3.1 The Concept and Introduction of the Punishable Attempt ... 75
3.2 The Incomplete Attempt ... 77
3.3 The Completed Attempt ... 82
4 Punishable Participation ... 86
4.1 The Concept and Types of Punishable Participation ... 86
4.2 Participation by Giving Permission ... 87
4.3 Participation by Giving Advice ... 88
4.4 Participation by Giving a Mandate ... 93
4.5 Participation by Giving an Order ... 94
4.6 Participation by Giving Help ... 94
5 Grounds for Exemption from Punishment ... 97
5.1 The Concept of Exemption and the Classification of the Grounds for Exemption from Punishment ... 97
5.2 Order of Law and Command of Authority .. 98
5.3 Self-defence and Defence of Someone Else ... 99
5.4 Necessity ... 102
5.5 Insanity and Related Circumstances ... 103
5.6 Duress or Force Majeure ... 105
5.7 Mistake of Law and Mistake of Fact ... 106
5.8 Minority ... 108

5 The Punishments ... 109
1 The Functions of Punishment ... 109
1.1 Retribution ... 109
1.2 Deterrence ... 115
1.3 The Reformation of the Offender ... 117
1.4 Societal Protection or Incapacitation ... 122
2 The Different Punishments ... 123
2.1 Punishments in the Late Middle Ages and the Modern Era ... 123
2.2. Punishments since the French Revolution ... 125
3 The Ultimate Sanction: The Death Penalty Through Six Centuries ... 128
3.1 In the Name of God ... 129
3.2 The Death Penalty Questioned ... 133
3.3 Off with Their Heads ... 137
3.4 Pro and Contra the Death Penalty in the Middle of the Nineteenth Century ... 146
3.5 The Tempered Death Penalty ... 158
3.6 The Death Penalty in the Belgian Parliament between 1830 and 1867 ... 161
3.7 The Caged Death Penalty (1867–1914) ... 185
3.8 Bullets for Traitors (1914–1950) ... 198
3.9 Towards a Legal, Constitutional Abolition of the Death Penalty ... 213
3.10 Concluding Summary ... 225

6 Some Offences and Their Punishments in Particular ... 231
1 ‘Dragged, Hung and Buried Like an Animal’: The Punishment for Suicide between the Fourteenth and Eighteenth Centuries ... 231
1.1 The Criminalisation of Suicide between the Fourteenth and the Eighteenth Centuries 231
1.2 The Jurisprudential Turn in the Eighteenth Century ... 234
1.3 The Duermael Case and the Legal Decriminalisation of Suicide ... 235
1.4 The Influence of the Enlightened Thinkers ... 242
1.5 The Secularisation of Insanity ... 245
1.6 The Concealment of Death ... 246
1.7 The ‘Privatisation’ of the Legal Punishment ... 247
2 On the Razzle with the Devil: Witch Trials in Europe and Flanders ... 251
2.1 The Definition of a Witch Trial ... 251
2.2 The Chronology and Geography of the Witch Trials ... 257
2.3 Witch Trials: Women’s Trials? ... 261
2.4 Looking for an Explanation ... 263
2.5 The Witch Trials in Olsene-Dentergem ... 266
3 The Press on Trial: Press Offences in the Young Belgian State ... 312
3.1 Measures Controlling the Press Before 1830 ... 312
3.2 The Belgian Press Legislation in a Nutshell ... 320
3.3 Long Live Belgium! ... 326
3.4 Democracy, Preferably with a Small ‘d’ ... 333
3.5 Do Not Speak (or Write) Ill of the Church ... 338
3.6 Concerning Vulgar Pictures and Salacious Texts ... 342
3.7 Personal Revenge and Other Dirty Linen ... 350
3.8 Monarchs Were Quick to Take Offence ... 354
4 A State in Transition: The Punishment of Collaboration with the Enemy during and After the First World War ... 362
4.1 The Notion of Collaboration with the Enemy and Its Legal Bases ... 362
4.2 The Authority to Make Judgements on Collaboration ... 365
4.3 Transitional Justice? ... 371

7 The Administration of Criminal Justice ... 409
1 The Administration of Criminal Justice between the Sixteenth and the Eighteenth Centuries ... 409
1.1 The Civil Claim Issuing from an Offence ... 409
1.2 The Civil and Criminal Procedures in Criminal Cases ... 410
1.3 The Course of a Criminal Trial ... 414
2 Criminal Procedure since the French Revolution ... 428

Selective Bibliography 435

Index of Persons 438
Index of Places 453
Subject Index 457