Franz von Liszt
Encyclopedia
Franz Ritter von Liszt (March 2, 1851 Vienna
– June 21, 1919 Berlin
) was a German
jurist
, criminologist and international law
reformer. As a legal scholar, he was a proponent of the modern sociological and historical school of law. From 1898 until 1917, he was Professor of Criminal Law and International Law at the University of Berlin
and was also a member of the Progressive People's Party
in the Prussian Chamber of Deputies and the Reichstag
.
was Franz von Liszt's cousin and also acted as his godfather.
The Austrian title of nobility Ritter
was awarded the composer Franz Liszt in 1859 by the Emperor Francis Joseph I. The composer needed the title to marry the Princess of Sayn-Wittgenstein without her losing her privileges, so he solicited the nobilitation which was conceded by the emperor in recognition of his services to Austria. After the marriage fell through, the composer transferred the title to his uncle Eduard, the father of the subject of this article, in 1867 when he received the Minor Orders of the Catholic Church. The composer actually never used the title in public.
In 1882, while in Marburg
, he held his first seminar on criminology and continued to work on building the scientific journal covering the entire field of criminal justice. He also founded the so-called "Marburg School" of criminal law, asserting that crime must be essentially looked upon as a social phenomenon.
In addition to the scientific aspect of the law, practical public policy also appealed to him. He was active in Berlin beginning in about 1900 in the Progressive People's Party
and was a member of the City Council of Charlottenburg until 1908, when he was elected to the Prussian House of Representatives. In 1912, he was elected to the German Reichstag
. However, he remained politically rather a backbencher, and always remained a thorn in the side of the governmental bureaucracy. As a liberal outsider with courage, he was sitting on the cross benches, so that in neither the established society of Prussia nor in the empire was there much support for his positions.
Liszt died on 21 June 1919, after a long illness, and was survived by his wife, Rudolfine, and two daughters, both of whom remained unmarried. This branch of the Liszt family has since become extinct.
Parts of Liszt's extensive library are housed in the Liszt Institute Library of Humboldt University of Berlin
.
and Georg Wilhelm Friedrich Hegel
. He tried to explain the crime by investigating the causes of the behavior of the offender to. His theory of punishment was exclusively dominated by the utilitarian, that is not served the prison of retribution (Karl Binding
), but the goal-specific deterrence, which is why Liszt as the father of special preventive punishment theory with its punitive purposes backup, recovery and deterrence (true, "Marburger Program").
His political reform ideas were to improve the offender's existing social relations and to design an individually tailored plan of specific rehabilitation of the offender, short of prison for most. In this sense, he advocated a differentiation of specific deterrence
for offenders types:
In 1889, he co-founded the International Criminal Law Association (German: Internationale Kriminalistische Vereinigung). His political reform ideas are found in the penal reforms of the 20th century, such as: Abolishing short prison sentences; imposing suspended sentences with probation; measures for relief and security; rehabilitating offenders; and special measures for juvenile offenders.
As part of his lectures on criminal law and evidence, Liszt staged an experiment at the University of Berlin in 1902. In a classroom, two students began to have an angry argument, until one pulled out a gun. As the panicked students around them drew back, a professor tried to intervene – and a shot was fired. The professor collapsed to the ground. The witnesses, unaware that all three were actors following a script, were then taken outside and quizzed about what they had seen and heard. They were encouraged to give as much detail as possible.
Everyone got it wrong. They put long monologues into the mouths of spectators who had said nothing; they "heard" the row as being about a dozen different imagined subjects, from girlfriends to debts to exams; they saw blood everywhere, when there was none. Most people got a majority of their "facts" wrong, and even the very best witness offered a picture that was 25 per cent fiction. The more certain the witness, the more wrong they were.
German criminal law witnessed intense battles pitting consequentialists against deontologists, those who proposed punishment ne peccetur against those who preferred punishing quia peccatum est. The fiercest, and most prolonged, period of this dispute even had its own name, the "Clash of the Schools" (Schulenstreit), whose main protagonists were Liszt for the "progressive school," and Karl Binding
, the originator of “norm theory” in German criminal law, for the "classical school." Binding was Liszt's great adversary, and many of Liszt's central views were formed in response, or at least in contradistinction, to Binding's.
To characterize the dispute between Liszt and Binding (and their associates and successors) as one between consequentialism
and retributivismis misleading. It is important to keep in mind that both Liszt and Binding were thoroughgoing legal positivists
. Binding argued that punishment was justified, and only justified, as the state’s response to a violation of a state norm. The essence of crime thus was the violation of a norm of positive law, rather than the commission of a wrongful act. The criminal law was not so much a demand of justice, or as Kant
would have it, a "categorical imperative," as a state tool for the enforcement of state authority that the state may or may not choose to employ.
Liszt accused Binding and his fellow classicists of advocating pointless punishment. (That’s not quite fair, as we just saw, since Binding thought punishment served the purpose of maintaining state authority.) Liszt insisted that punishment, to be legitimate in a modern enlightened state, had to serve some purpose. Punishment could never be an end in itself. More specifically, Liszt argued that punishment must (and does) seek to protect legal goods. These legal goods, in Liszt's view, included, broadly speaking, "the life conditions" of a given community so that crimes were all "those acts that this people at this time perceives as disturbances of its life conditions." Punishment served its purpose through rehabilitation (education), deterrence, or incapacitation, depending on the type of offender. The recidivist, for instance, would upon his third conviction of an offense motivated by "the strongest and most basic human drives" (including theft, robbery, arson, and rape, but also damaging property) be sentenced to an indeterminate prison term, to be served in a state of "penal servitude," with the use of corporal punishment to enforce prison discipline. Truly incorrigible offenders were to be imprisoned for life, because "we do not wish to behead or hang and cannot deport" them.
In keeping with their broadly treatmentist approach, Liszt and his fellow progressives called for more or less radical legislative reforms. The cumbersome, and legalistic, construct of criminal law doctrine was to be replaced by a more flexible, modern, scientific ("progressive") system for the proper diagnosis, and classification, of offenders, which was crucial for the prescription of the correction quality and quantity of peno-correctional treatment. Ironically these reform proposals did not come to fruition until after the Nazis took power in 1933. One of the Nazis’ first criminal law reforms was the Law Against Dangerous Recidivists and Measures Regarding Protection and Rehabilitation of November 1933, which established the "two-track" sanctioning system that remains in place today. Since then, two general types of sanction have been available: punishments and measures. Only punishments "properly speaking" are subject to constraints of proportionality between culpability and sanction. "Measures" instead are unrelated to culpability and are determined exclusively by the offender's peno-correctional diagnosis. So if he requires rehabilitative treatment, he might be sent to a drug rehabilitation clinic; if he requires incapacitative treatment, he might be incarcerated indefinitely. Freed of the constraints of proportionality between offense and sanction, "measures" are served independently—and where appropriate consecutively—to whatever "punishments" are imposed.
Vienna
Vienna is the capital and largest city of the Republic of Austria and one of the nine states of Austria. Vienna is Austria's primary city, with a population of about 1.723 million , and is by far the largest city in Austria, as well as its cultural, economic, and political centre...
– June 21, 1919 Berlin
Berlin
Berlin is the capital city of Germany and is one of the 16 states of Germany. With a population of 3.45 million people, Berlin is Germany's largest city. It is the second most populous city proper and the seventh most populous urban area in the European Union...
) was a German
Germany
Germany , officially the Federal Republic of Germany , is a federal parliamentary republic in Europe. The country consists of 16 states while the capital and largest city is Berlin. Germany covers an area of 357,021 km2 and has a largely temperate seasonal climate...
jurist
Jurist
A jurist or jurisconsult is a professional who studies, develops, applies, or otherwise deals with the law. The term is widely used in American English, but in the United Kingdom and many Commonwealth countries it has only historical and specialist usage...
, criminologist and international law
International law
Public international law concerns the structure and conduct of sovereign states; analogous entities, such as the Holy See; and intergovernmental organizations. To a lesser degree, international law also may affect multinational corporations and individuals, an impact increasingly evolving beyond...
reformer. As a legal scholar, he was a proponent of the modern sociological and historical school of law. From 1898 until 1917, he was Professor of Criminal Law and International Law at the University of Berlin
Humboldt University of Berlin
The Humboldt University of Berlin is Berlin's oldest university, founded in 1810 as the University of Berlin by the liberal Prussian educational reformer and linguist Wilhelm von Humboldt, whose university model has strongly influenced other European and Western universities...
and was also a member of the Progressive People's Party
Progressive People's Party (Germany)
The Progressive People's Party was a liberal party of late Imperial Germany. It was formed in 6 March, 1910 as a merger of Freeminded People's Party, Freeminded Union, and German People's Party in order to unify the various liberal groups represented in parliament...
in the Prussian Chamber of Deputies and the Reichstag
Reichstag (German Empire)
The Reichstag was the parliament of the North German Confederation , and of the German Reich ....
.
Early life
Franz von Liszt's father was Eduard Ritter von Liszt, a lawyer who had completed a brilliant civil service career as the head of the newly created Austrian General Prosecutor's Office. The piano virtuoso and composer Franz LisztFranz Liszt
Franz Liszt ; ), was a 19th-century Hungarian composer, pianist, conductor, and teacher.Liszt became renowned in Europe during the nineteenth century for his virtuosic skill as a pianist. He was said by his contemporaries to have been the most technically advanced pianist of his age...
was Franz von Liszt's cousin and also acted as his godfather.
The Austrian title of nobility Ritter
Ritter
Ritter is a designation used as a title of nobility in German-speaking areas. Traditionally it denotes the second lowest rank within the nobility, standing above "Edler" and below "Freiherr"...
was awarded the composer Franz Liszt in 1859 by the Emperor Francis Joseph I. The composer needed the title to marry the Princess of Sayn-Wittgenstein without her losing her privileges, so he solicited the nobilitation which was conceded by the emperor in recognition of his services to Austria. After the marriage fell through, the composer transferred the title to his uncle Eduard, the father of the subject of this article, in 1867 when he received the Minor Orders of the Catholic Church. The composer actually never used the title in public.
Career
Liszt studied law in 1869 in Vienna, having among his teachers Rudolf von Ihering, who influenced him fundamentally in his views of the law and whose views he later transferred into criminal law. In 1874, Liszt, having earned a law degree and a Ph.D., quickly sought a university teaching career, which took him in 1876 to Graz, Marburg (from 1882), Hall (from 1889) and finally in 1898, at the peak of his career, to the largest law faculty of the Empire in Berlin, where he taught criminal law, international law and jurisprudence. In his 20 years there, he devoted himself almost exclusively to criminal law.In 1882, while in Marburg
Marburg
Marburg is a city in the state of Hesse, Germany, on the River Lahn. It is the main town of the Marburg-Biedenkopf district and its population, as of March 2010, was 79,911.- Founding and early history :...
, he held his first seminar on criminology and continued to work on building the scientific journal covering the entire field of criminal justice. He also founded the so-called "Marburg School" of criminal law, asserting that crime must be essentially looked upon as a social phenomenon.
In addition to the scientific aspect of the law, practical public policy also appealed to him. He was active in Berlin beginning in about 1900 in the Progressive People's Party
Progressive People's Party (Germany)
The Progressive People's Party was a liberal party of late Imperial Germany. It was formed in 6 March, 1910 as a merger of Freeminded People's Party, Freeminded Union, and German People's Party in order to unify the various liberal groups represented in parliament...
and was a member of the City Council of Charlottenburg until 1908, when he was elected to the Prussian House of Representatives. In 1912, he was elected to the German Reichstag
Reichstag (German Empire)
The Reichstag was the parliament of the North German Confederation , and of the German Reich ....
. However, he remained politically rather a backbencher, and always remained a thorn in the side of the governmental bureaucracy. As a liberal outsider with courage, he was sitting on the cross benches, so that in neither the established society of Prussia nor in the empire was there much support for his positions.
Liszt died on 21 June 1919, after a long illness, and was survived by his wife, Rudolfine, and two daughters, both of whom remained unmarried. This branch of the Liszt family has since become extinct.
Parts of Liszt's extensive library are housed in the Liszt Institute Library of Humboldt University of Berlin
Humboldt University of Berlin
The Humboldt University of Berlin is Berlin's oldest university, founded in 1810 as the University of Berlin by the liberal Prussian educational reformer and linguist Wilhelm von Humboldt, whose university model has strongly influenced other European and Western universities...
.
Criminal Law Work
Being of German criminal law textbook published in 1871, which reached a total of 26 runs to 1932, presented by the liberal constitutional model based systematic theology dar. starting point for the criminal criminal-political history of influence was the "Marburger Program" (The purpose of thought in criminal law, 1882). The concept of punishment and criminal law based on the methods and the marketing concept of positivism was directed against metaphysical justifications of retribution. Liszt wanted to overcome the prevailing theories of punishment until then Immanuel KantImmanuel Kant
Immanuel Kant was a German philosopher from Königsberg , researching, lecturing and writing on philosophy and anthropology at the end of the 18th Century Enlightenment....
and Georg Wilhelm Friedrich Hegel
Georg Wilhelm Friedrich Hegel
Georg Wilhelm Friedrich Hegel was a German philosopher, one of the creators of German Idealism. His historicist and idealist account of reality as a whole revolutionized European philosophy and was an important precursor to Continental philosophy and Marxism.Hegel developed a comprehensive...
. He tried to explain the crime by investigating the causes of the behavior of the offender to. His theory of punishment was exclusively dominated by the utilitarian, that is not served the prison of retribution (Karl Binding
Karl Binding
Karl Ludwig Lorenz Binding was a German jurist known as a promoter of the theory of retributive justice. His influential book, Die Freigabe der Vernichtung Lebensunwertem Lebens , written together with the psychiatrist Alfred Hoche, was used by the Nazis to justify their T-4 Euthanasia Program.-...
), but the goal-specific deterrence, which is why Liszt as the father of special preventive punishment theory with its punitive purposes backup, recovery and deterrence (true, "Marburger Program").
His political reform ideas were to improve the offender's existing social relations and to design an individually tailored plan of specific rehabilitation of the offender, short of prison for most. In this sense, he advocated a differentiation of specific deterrence
Deterrence (legal)
Deterrence is the use of punishment as a threat to deter people from committing a crime. Deterrence is often contrasted with retributivism, which holds that punishment is a necessary consequence of a crime and should be calculated based on the gravity of the wrong done.- Categories :Deterrence can...
for offenders types:
- Opportunity offenders should receive a suspended sentence as a lesson;
- improbable perpetrators should receive a (long) sentence, which should be accompanied by measures of rehabilitation; and
- incorrigible offenders should be permanently incarcerated.
In 1889, he co-founded the International Criminal Law Association (German: Internationale Kriminalistische Vereinigung). His political reform ideas are found in the penal reforms of the 20th century, such as: Abolishing short prison sentences; imposing suspended sentences with probation; measures for relief and security; rehabilitating offenders; and special measures for juvenile offenders.
As part of his lectures on criminal law and evidence, Liszt staged an experiment at the University of Berlin in 1902. In a classroom, two students began to have an angry argument, until one pulled out a gun. As the panicked students around them drew back, a professor tried to intervene – and a shot was fired. The professor collapsed to the ground. The witnesses, unaware that all three were actors following a script, were then taken outside and quizzed about what they had seen and heard. They were encouraged to give as much detail as possible.
Everyone got it wrong. They put long monologues into the mouths of spectators who had said nothing; they "heard" the row as being about a dozen different imagined subjects, from girlfriends to debts to exams; they saw blood everywhere, when there was none. Most people got a majority of their "facts" wrong, and even the very best witness offered a picture that was 25 per cent fiction. The more certain the witness, the more wrong they were.
Dispute of schools of thought on punishment
Liszt early and often advocated criminology as a supplement to criminal law in a system of a comprehensive "criminal legal science."German criminal law witnessed intense battles pitting consequentialists against deontologists, those who proposed punishment ne peccetur against those who preferred punishing quia peccatum est. The fiercest, and most prolonged, period of this dispute even had its own name, the "Clash of the Schools" (Schulenstreit), whose main protagonists were Liszt for the "progressive school," and Karl Binding
Karl Binding
Karl Ludwig Lorenz Binding was a German jurist known as a promoter of the theory of retributive justice. His influential book, Die Freigabe der Vernichtung Lebensunwertem Lebens , written together with the psychiatrist Alfred Hoche, was used by the Nazis to justify their T-4 Euthanasia Program.-...
, the originator of “norm theory” in German criminal law, for the "classical school." Binding was Liszt's great adversary, and many of Liszt's central views were formed in response, or at least in contradistinction, to Binding's.
To characterize the dispute between Liszt and Binding (and their associates and successors) as one between consequentialism
Consequentialism
Consequentialism is the class of normative ethical theories holding that the consequences of one's conduct are the ultimate basis for any judgment about the rightness of that conduct...
and retributivismis misleading. It is important to keep in mind that both Liszt and Binding were thoroughgoing legal positivists
Legal positivism
Legal positivism is a school of thought of philosophy of law and jurisprudence, largely developed by nineteenth-century legal thinkers such as Jeremy Bentham and John Austin. However, the most prominent figure in the history of legal positivism is H.L.A...
. Binding argued that punishment was justified, and only justified, as the state’s response to a violation of a state norm. The essence of crime thus was the violation of a norm of positive law, rather than the commission of a wrongful act. The criminal law was not so much a demand of justice, or as Kant
KANT
KANT is a computer algebra system for mathematicians interested in algebraic number theory, performing sophisticated computations in algebraic number fields, in global function fields, and in local fields. KASH is the associated command line interface...
would have it, a "categorical imperative," as a state tool for the enforcement of state authority that the state may or may not choose to employ.
Liszt accused Binding and his fellow classicists of advocating pointless punishment. (That’s not quite fair, as we just saw, since Binding thought punishment served the purpose of maintaining state authority.) Liszt insisted that punishment, to be legitimate in a modern enlightened state, had to serve some purpose. Punishment could never be an end in itself. More specifically, Liszt argued that punishment must (and does) seek to protect legal goods. These legal goods, in Liszt's view, included, broadly speaking, "the life conditions" of a given community so that crimes were all "those acts that this people at this time perceives as disturbances of its life conditions." Punishment served its purpose through rehabilitation (education), deterrence, or incapacitation, depending on the type of offender. The recidivist, for instance, would upon his third conviction of an offense motivated by "the strongest and most basic human drives" (including theft, robbery, arson, and rape, but also damaging property) be sentenced to an indeterminate prison term, to be served in a state of "penal servitude," with the use of corporal punishment to enforce prison discipline. Truly incorrigible offenders were to be imprisoned for life, because "we do not wish to behead or hang and cannot deport" them.
In keeping with their broadly treatmentist approach, Liszt and his fellow progressives called for more or less radical legislative reforms. The cumbersome, and legalistic, construct of criminal law doctrine was to be replaced by a more flexible, modern, scientific ("progressive") system for the proper diagnosis, and classification, of offenders, which was crucial for the prescription of the correction quality and quantity of peno-correctional treatment. Ironically these reform proposals did not come to fruition until after the Nazis took power in 1933. One of the Nazis’ first criminal law reforms was the Law Against Dangerous Recidivists and Measures Regarding Protection and Rehabilitation of November 1933, which established the "two-track" sanctioning system that remains in place today. Since then, two general types of sanction have been available: punishments and measures. Only punishments "properly speaking" are subject to constraints of proportionality between culpability and sanction. "Measures" instead are unrelated to culpability and are determined exclusively by the offender's peno-correctional diagnosis. So if he requires rehabilitative treatment, he might be sent to a drug rehabilitation clinic; if he requires incapacitative treatment, he might be incarcerated indefinitely. Freed of the constraints of proportionality between offense and sanction, "measures" are served independently—and where appropriate consecutively—to whatever "punishments" are imposed.
International law influence
Largely forgotten because of Liszt's work in the criminal law area is the fact that between 1898 and 1919, eleven editions of his textbook on international law were published. He contributed more to the dissemination of knowledge in this area of law than any previously published international law textbook author. He undertook an extensive effort to understand all existing international law and to make suggestions for the international community, on such subjects as naval warfare, the right citizens to fundamental human rights and on international extradition law. Liszt argued that: From this basic idea (international legal intercourse] directly follows a whole series of legal norms, by which are defined the mutual rights and obligations of states and do not require any special treaty recognition in order to have obligatory force. They comprise a firm basis for all the unwritten legal rules of international law, and are its oldest, most important and holiest content." Liszt advocated the creation of a mandatory arbitration court, as he saw it as the first step towards effective integration of countries into a grand organized international federation. To ensure sustainable peace, Liszt called for a deeper integration of the bloc. Based on economic, cultural and geographical close cooperation, Liszt stated that he saw a "law of the groups of states" being created. Aftaer 1914, he reacted to questions about the design of a future League of Nations (Liszt: "Völkerareopag"). He advocated for a League of Nations with a coercive judicial power over its members. Liszt's work in this area documented the tension between classical and modern international law like no other.Works
- The German Reich Criminal Law, Berlin, 1881
- The Purpose of Thought in Criminal Law, Berlin 1882/83
- Criminal Law in the States of Europe, Berlin 1884
- International law. Systematically Presented (Das Vlilkerrecht systematisch dargestellt), 1st ed. Berlin, 1888; 11th ed. Berlin, 1918
- The Essence of the International Association of States and the International Prize Court, in: Festschrift for law faculty of Berlin, Otto von Gierke doctorate 21st Anniversary August 1910, Vol. 3, Wroclaw 1910 (ND Frankfurt 1969), p. 21 ff
- An Association of Central European States as the Next Target of German Foreign Policy, Leipzig, 1914
- Nibelungen, in: Österreichische Rundschau 42 (1915), p. 87 ff
- The Reconstruction of International Law, Pennsylvania Law Review 64 (1916), p. 765 ff
- Association of States for the International Community. A contribution to the reorientation of the States policy and International Law, Munich and Berlin, 1917
- Violence or Peace League. An Exhortation in the Last Hour, in: NZZ No. 1428 v. 27 October 1918, p. 1
- Textbook of German Criminal Law, 22nd edition, Berlin, 1919