Penology – French: Pénologie, German: Pönologie, Spanish: Penologia, Russian: Пенология.
Subject of study
Penology refers to the general science of punishment. As a scientific discipline, a subject of study and a topic of education it has evolved within the science of criminal law. Penology deals primarily with the criminal punishment, i.e. the punishment inflicted for a culpable act defined as crime by legal provisions. Penology is a section of penal sciences, together with the (dogmatic) science of substantive criminal law, the science of law of criminal proceedings, the science of criminal executive law and penitentiary law, the science of crime detection and criminology, and criminal and penitentiary policy. The name of the discipline comes from the Latin poena (‘punishment’) and from the Greek logos (meaning, among all, ‘knowledge’ and ‘reason’). Thus, penology may be defined as the systematic knowledge of punishment. Its findings are important both for criminal law and for general considerations on punishment in social sciences and humanities. Penology sees punishment as an institutionalized and complex process of legal and social nature (i.e. legal and social institution) which may take various organizational forms. In such context, criminal punishment means the process of intentional, legal and social condemnation and of intentional causing of objectively measurable personal affliction, which has been legally defined, decided by judgment of an independent court in the name of the legal and social system (State), and which consists in official, organized deprivation of goods of a person who, in the opinion of the court, would presumably cause illegal prejudice to such system, by voluntary violation of sanctioned norms which provide for the existence of crime and which correlate with a specific penalty. In penology, the fulfillment of criminal punishment (actualization) starts with the announcement of the valid judgment and lasts until the end of its execution process (full actualization). However, penology is equally interested in the stage of criminal proceedings and its social repercussions to be called “the potentiality of punishment”, i.e. in research on legal and social aspects of influencing social reality by official actions intended to accomplish the administration of individually defined criminal punishment, i.e. actions which have been taken since the opening of the proceedings ad personam. In penological sense, the ultimate function of criminal punishment is to reintegrate a shaken legal and social system. In this perspective, the influence of punishment ceases to exist only when legally tangible and socially and individually vital effects of punishment process come to an end.
At present, the expression “penology” covers: 1) research on social consequences of punishment (punishment functions); 2) analysis of theoretical aspects and practical experiences in internal mechanisms of the functioning of criminal justice, in particular prisons; 3) theoretical research on punishment grounds, i.e. axiology, ideology, rationalization and philosophy of punishment, substantiations of sentences and punishment execution.
As a result of such polymorphic research interests, penology, depending on the research and theoretical approach dominating in a given country, at a given time, has come closer to: a) philosophical reflections on punishment. It differs however by drawing in its analyses on the science of criminal law (both its theory and dogmatics), general works of social sciences (sociology) and the results of empirical studies; b) Anglo – Saxon approach of Criminal Justice Studies (or German Sanktionsforschung) or Polish broad penitentiary sciences, i.e. legal, sociological and pedagogical studies on the functioning of criminal justice, which penology understands in a broader ideological and philosophical context. In recent literature of the subject, a specific weight has been given to interdisciplinary legal and social research which integrates past works in penology. The aim of those studies is to analyze and find theoretical synthesis of criminal, philosophical, social, cultural, political and institutional conditions for punishment and criminal policy. Such studies are defined as culturally integrated 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 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
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.
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”.
Penology as a scientific discipline
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:
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;
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.
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
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.
Penology vs. pedagogy and sociology of education
Penology sees the criminal punishment as a social institution. The notion of social institution refers to repeatable, well – established behaviors, patterns, rules and rituals. Another notion frames social institution as a distinctive type of activity fulfilling the needs of individuals and communities. Within such meaning, used also by Bronisław Malinowski, the institution is split into the ultimate principle, i.e. the aims and objectives as foundations of its rationalization, norms, staff and material assets, the manifestations of its activities and social functions understood as its known and unknown consequences for the society. In the latter case, the primary meaning is interwoven with the secondary meaning, which defines the visible organizational form that social institutions may take, for instance the specific organizational forms of criminal punishment.
Social institutions, in their specific organizational forms, may be classified into different types, such as:
Considering the classification above, we may assume that penology, and more broadly speaking, all types of criminal justice studies investigate first of all social institution belonging to the second and the third type, in other words, institutions of political nature which regulate the relations of power, the political organization of the society and the functioning of coercive measures as well as those establishing the rules of social stratification and define the distribution of social positions and social resources within the society. However, from the pedagogical point of view, the most important institutions are covered within types one and five; these are family and kinship institutions regulating primarily the rules of biological and social reproduction of the society through nurturing and child care, on the one hand, and nurture and educational institutions pertaining to religion, scientific and artistic education, mass media activities and participation in higher culture, on the other. This is quite an important assumption as it helps set the initial pragmatic difference between the sciences of pedagogy, including social prevention and rehabilitation, and penology, and more broadly criminal law and the sciences of criminology, which is theoretically vital and bears some in – depth practical implications.
It becomes clear that pedagogy and penal sciences often raise different questions even if in empirical, non – social sense, they talk about the same events. This theoretical distinction was introduced within culturally integrated studies, and may pave the way for the practical integration of works from these two, fundamentally distinctive, research fields. The integration of findings of sciences of education plays an important role for penological studies. The role of criminal punishment is to fulfill, to a large extent, the needs of individuals and communities as for the sense of order, security and justice. Such role may be fulfilled within the limits set by the ultimate institutional principle of the State, which provides for philosophical foundations of rights and freedoms of the human being, i.e. within the limits of the respect of human dignity. This requires taking into account, in devising punishment organizational forms and in establishing the sentence and execution methods, the humanistic knowledge of the human being, including any findings on possible humanitarian methods of modifying human behavior.
Criminal punishment should never be confused with punishment in education, which is obvious from culturally integrated perspective. Punishment in education refers to the individual (and his/her well – being), a human being who, due to influence (i.e. reasonable aversive stimuli), should permanently change his/her behavior for the sake of himself/herself and the society. On the other hand, criminal punishment is primarily used in order to ensure the sense of order, security and justice for the society at large (and it may only secondarily consider the well – being of the individual under punishment as a member of such society; it will however never be its primary function). This difference between criminal punishment and punishment in education, raised in culturally integrated studies, does not preclude any links between pedagogy and sociology of education with penology. It only gives such relations a right dimension and helps avoid errors of categorial shift, encountered sometimes in penitentiary literature. According to abovementioned findings of culturally integrated studies, in awarding criminal punishment in the name of the State we need to maintain axiological coherence of the system of law, i.e. the need to respect dignity of the punished individual. That is why it is necessary to continue to study the compliance of criminal punishment with humanitarian standards protecting human dignity. And that is also why the knowledge from the field of sociology of education and pedagogy may have a significant influence on findings pertaining to the objective scope of punishment (penalization) and its forms, particularly regarding the minors and juveniles. It is universally important in shaping the forms of humanitarian punishment. It helps establish limits beyond which, in the light of present humanistic knowledge of the human being and its social behavior, there are no sufficient reasons for applying some particularly inflicting forms of influence.
It cannot be scientifically confirmed that any type of social institution is a necessity. As the research, among all studies led by Robert K. Merton, show, what is necessary for the society to exist is a function exerted by specific types of institutions and not such specific institutions and their organizational forms themselves, including, for instance, organizational forms of criminal punishment. This functionalist assumption may become a good theoretical basis for different approaches in abolitionist thinking which postulates to repeal, as far as reasonable, the system of criminal punishment, or at least the penalty of imprisonment as contrary to the well – being of the man and as lacking respect of human dignity. From the perspective of culturally integrated penology, in such approach, abolitionists need to find measures to ensure individuals and societies the sense of order, justice and security without the help of the system of criminal punishment. The discussion on this difficult topic, definitely going beyond the scope of the science of criminal law and criminology, should involve humanist thinkers, including the representatives of pedagogy and sociology of education. Independently of the fundamental role of pedagogical sciences (rehabilitation and penitentiary pedagogy) for penitentiary sciences, social pedagogy and pedagogy of education should contribute to the penological debate on the most general grounds of punishment. Such debate is strictly connected with thinking on the whole social system and on values to be transferred to young generations, as well as with the reflections on methods deemed as worthy, or at least acceptable, for their promotion and protection. The debate focuses on methods which may be applicable in various organizational forms of criminal punishment. It may also contribute to the discussion on methods of social control different from criminal punishment. It may relate to alternative measures of different, also non – repressive forms of control within social organization as a whole (social prevention) and other axiologically similar alternative forms of resolving social conflicts within criminal justice, for instance restorative justice or mediation.
Bronisław Wróblewski, Penologja. Socjologja kar, t.1 i t. 2, Wilno, Księgarnia Kazimierza Rutskiego 1926; Leszek Lernell, Podstawowe zagadnienia penologii, Warszawa, Wydawnictwo Prawnicze 1977; Jarosław Utrat-Milecki, Kontekst kulturowy koncepcji penologicznych [w:] System penitencjarny i postpenitencjarny w Polsce (red. Teodor Bulenda, Ryszard Musidłowski), Warszawa, ISP 2003; Jarosław Utrat-Milecki, Teoria kary, [w:] Encyklopedia Pedagogiczna XXI wieku, t. 2 (red. Tadeusz Pilch), Warszawa, Żak 2003;
Jarosław Utrat-Milecki, Przedmiot, miejsce i rola penologii jako dyscypliny pokrewnej nauce prawa karnego [w:] Gaudium in litteris est. Księga jubileuszowa ofiarowana Pani Profesor Genowefie Rejman z okazji osiemdziesiątych urodzin (red. Lech Gardocki, Michał Królikowski, Anna Walczak-Żochowska), Warszawa, Liber 2005; Jarosław Utrat-Milecki, Podstawy penologii. Teoria kary, Warszawa, Wyd. UW 2006; Kara w nauce i kulturze (red. Jarosław Utrat-Milecki), Warszawa, Wyd. UW 2009.
[Tłumaczenie: Joanna Ruszel]