Modernism and the Criminal - Lindsay Farmer - Critical Analysis of Law

Modernism and the Criminal
Lindsay Farmer
Abstract
            This paper explores the relationship between literary modernism, as analyzed in Matthew
            Levay’s book Violent Minds, and penal modernism. It argues that, by focusing only on the
            work of Cesare Lombroso, literary modernism failed to engage in a serious way with the
            project of penal modernism.

                                “Probably, it was not realized, at least at first, that to add the notion of psycho-
                                    logical symptomatology of a danger to the notion of legal imputability of a
                                                        crime was . . . to enter an extremely obscure labyrinth.”
                                                   Foucault, “About the Concept of the Dangerous Individual”
                                                         I.
In his celebrated essay on the “Dangerous Individual,” Michel Foucault identified the “ob-
scure labyrinth” created by the combination of legal responsibility and psychological
understandings of criminality.1 He tracked the growing focus on the character of the crim-
inal and the psychologization of understandings of dangerousness over the course of the
nineteenth century. The paradox that this created—the “obscure labyrinth”—was that to
focus on criminality as something inherent and pre-determined seemed to undercut the very
idea of responsibility for an act which lay at the heart of the penal code. As Foucault put it:
            If an act is determined by a causal nexus, can it be considered to be free? Does it not imply
            responsibility? And is it necessary, in order to be able to condemn someone, that it be
            impossible to reconstruct the causal intelligibility of his act? 2

In other words, the legal understanding of the act in terms of freedom and responsibility
seemed to be undercut by new “scientific” understandings of the criminal. The problem for
penal modernism was to find a way out of this obscure labyrinth.
         Matthew Levay addresses a similar complex of ideas in his fascinating book on
modernism and the criminal: the relationship between responsibility and the figure of the
criminal as this was played out in the development of literary modernism. 3 And this
prompts the question of whether (and if so, how) the literary modernist project addressed
and engaged with the questions raised by Foucault. In this short paper, I want to explore
the relationship between penal and literary modernism, to ask what light (if any) each might


 Professor of Law, University of Glasgow. Funding for the research on which this paper is based was gener-
ously provided by the Leverhulme Trust (Grant No. MRF 2018-075). History, McGill University.
1Michel Foucault, About the Concept of the “Dangerous Individual” in 19th-Century Legal Psychiatry, 1
Int’l J.L. & Psychiatry 1, 3 (1978).
2   Id. at 12.
3   Matthew Levay, Violent Minds: Modernism and the Criminal (2019).

ISSN 2291-9732

Farmer — Modernism and the Criminal                                                                       89

shed on the development of the other and indeed on criminality, or the figure of the crim-
inal.4
                                                     II.
I want to start by exploring the meaning of penal modernism.5 Under the influence of penal
reformers such as Beccaria and Bentham, the penal codes of many western European coun-
tries were reformed in the early part of the nineteenth century, outlawing practices such as
torture and limiting the power of the state to punish. Punishment could only be for an act
proscribed by law, and only to the extent permitted by law. An individual, moreover, could
only be punished if they had freely broken the law.6 This notion saw the introduction of a
new economy of (and in) punishment. Punishment should be proportional to the crime,
and in no case should it be more severe than was necessary to deter individuals from com-
mitting future acts of that type. This was the so-called classical model of criminal law,
reconceptualizing crime and punishment within a legal code that sought to limit the power
of the state.
         The classical model began to be challenged over the course of the nineteenth cen-
tury. First, there was a concern that punishment was not deterring crime—or, at least, not
all crime. This was in part a matter of the effectiveness of the prison as a form of punish-
ment. In spite of rigid disciplinary systems and measures taken to prevent or limit
association between prisoners, prisons were seen as breeding grounds for crime. Many of
those who served prison sentences committed further crimes on their release, leading to
the identification of certain types of hardened, or habitual, criminals, who were thought to
require special kinds of punishment because of their unique characteristics. At the same
time, as Foucault points out, doctors were becoming increasingly concerned with certain
horrific crimes which appeared to have been committed for no reason at all—yet did not
fall within traditional understandings of criminal insanity.7 The question that criminal psy-
chiatrists were then asking was how it was possible to punish the individual whom we did
not know or understand. Thus, from these two different directions the focus was increas-
ingly on trying to understand the criminal mind—to make the control and treatment of the
criminal more effective—leading to the birth of what we understand as penal modernism.

4In this paper I distinguish between literary modernism, which I understand (in similar terms to Levay) as a
cultural project, and penal modernism, as a governmental project creating a new knowledge of crime and the
criminal to shape a new kind of institutional response to crime.
5 I have discussed penal modernism in Lindsay Farmer, Penal Modernism: An American Tragedy, 1 CAL 189
(2014); Lindsay Farmer, Making the Modern Criminal Law: Criminalization and Civil Order 89-103 (2016) (as
penal welfarism). And see now Lindsay Farmer, Responding to the Problem of Crime: English Criminal Law
and the Limits of Positivism, 1870-1940, in The Limits of Positivism 1870-1940 (Michele Pifferi ed., forth-
coming 2021).
6 This is the idea of so-called “imputability”—that the individual should be the author of the act—and I use
this term rather than “responsibility” because conceptions of criminal responsibility developed in an uneven
way over the course of the nineteenth century. See Nicola Lacey, In Search of Criminal Responsibility: Ideas,
Interests and Institutions (2016).
7   Foucault, supra note 1, at 2-10.

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         There were, to be sure, many different varieties of penal modernism as an intellec-
tual project, and it was adapted with greater or lesser degrees of enthusiasm in different
countries. But there were certain key features. The main one was the shift in focus from the
crime to the “criminal.” If the classical model was primarily focused on the act, now the
criminal act was increasingly seen as a symptom, evidence of the danger posed by the indi-
vidual. Crime was reconceived in biopolitical terms as an act that harmed or threatened the
social body, and the “criminal” was the threat that had to be treated.8 Different criminal
characters posed different kinds of threat or danger, so it was seen as increasingly necessary
to understand criminal motivations. These were not understood in terms of the crimes that
the person had committed but rather in terms of their character, which led to the discovery
of new “manias” linked to certain kinds of criminality (kleptomania, pyromania, sexual de-
viance, and so on). In practical terms, this produced a series of distinctions between the
unreclaimable (the habitual offender and the monster) and the treatable (notably juvenile
offenders) and the creation of distinct penal regimes to deal with different classes of of-
fender. Finally, then, this system depended on the assertion of a “psychologically intelligible
link between the act and the author.”9 Criminology developed as a specialist knowledge
aimed at understanding the mind and motivation of the criminal. Punishment was then to
be adapted to the character of the criminal, as “the reason for the crime had become the
reason for the punishment.”10 Different kinds of criminals required different forms of pun-
ishment, from the indefinite detention of those judged to present an irreducible risk to
various kinds of treatment and therapeutic intervention.
         The problem for penal modernism, as Foucault points out, was that this focus on
the criminal seemed to undercut the concept of legal responsibility which lay at the heart
of the classical system. Foucault argues that this was resolved with a reconceptualization of
responsibility in a way that was consistent with new understandings of dangerousness.11
This moved away from traditional ideas of individual fault and drew instead on understand-
ings of cause-based liability in civil law to link the act to the risk of criminality constituted
by the personality of the criminal. In this way, the concept of dangerousness was expanded:
it was no longer solely about the threat posed by certain acts but also a matter of what—or
who—one is.
         While this account is a simplification of a complex series of developments, penal
modernism, as it had taken shape in the early years of the twentieth century, was based on
the creation of a certain kind of knowledge of the criminal as a dangerous individual who
posed a threat to the social body. This was based on the assertion of a certain kind of
legibility of motivation which was then linked to an institutional response to crime. Penal

8   Id. at 10. On “biopolitics,” see 1 Michel Foucault, The History of Sexuality 133-59 (1979).
9   Foucault, supra note 1, at 10.
10   Id. at 9.
11   Id. at 14-16.

Farmer — Modernism and the Criminal                                                                91

modernism was above all a distinct and powerful governmental mechanism centered
around police, courts and prisons.
                                                 III.
In his book Violent Minds, Matthew Levay addresses the fascination of modernist writers
with the figure of the criminal, while also arguing that the use of genre forms, such as the
crime novel or detective story, was a neglected element of literary modernism. The Victo-
rian novel had opened up and explored processes of interiority, using literary techniques
such as the third-person narrator to make them legible, describing reasoning as a series of
steps in a linear thought-process.12 This had resonated with contemporary concerns in Vic-
torian criminal law which had sought to identify and define different degrees or types of
responsibility. The literary modernist project, by contrast, Levay argues, sought to depict
the reasoning process as malleable and often contradictory. Every individual was made up
of unique combinations of personality, experience, affiliation and motivations, and the
modernists challenged the simplification of these complex and dynamic mental processes.13
Literary modernism was committed to exploring the question of how mental life could be
represented—the doubts and hesitations, the conflicting motivations, the complex psychol-
ogy of the individual. Thus, “[f]or modernists, the idea of the criminal as potentially
unknowable was not simply a threat to public safety, but rather an opportunity to test the
capacity of literary form to represent such an enigma.”14
         This, moreover, was not merely a matter of representing interiority but also, as
Levay shows, a way of disrupting literary forms. If the classic detective story had proceeded
on the basis of the capacity of the detective to solve the mystery and restore order through
the use of reason, literary modernism disrupted this by playing up the role of chance and
uncertainty or introducing random elements into apparently conventional stories. Literary
modernism is thus seen primarily as an “aesthetic experiment.”15 The book explores a ten-
sion between attempts to order and categorize and the literary modernists’ resistance to
this. On the one hand, there are the figures of the criminologist and detective who seek to
organize, explain, classify and solve crime while, on the other, Levay traces efforts to disrupt
this literary form, from Dorothy L. Sayers’s parodies of the rationality of the detective to
Joseph Conrad’s stress on the illegibility of consciousness and the ubiquity of random vio-
lence. Throughout, though, Levay stresses that their interest was not in crime as a social
phenomenon, but in the criminal as an emblematic figure: one who was presumed to have
reasons, motivations, and personalities which might then be represented in fiction.
         This, of course, raises the question of who or what the criminal is—and this is where
the argument of the book engages with the project of penal modernism. Penal modernism

12Levay, supra note 3, at 11-12; see Lisa Rodensky, The Crime in Mind: Criminal Responsibility and the
Victorian Novel (2003).
13   Levay, supra note 3, at 75.
14   Id. at 11.
15   Id. at 3.

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is primarily represented in the book by the person of Cesare Lombroso, an Italian crimi-
nologist who achieved a certain amount of notoriety in the late nineteenth century and who
is sometimes regarded as the founder of modern criminology.16 Lombroso promoted a new
science of the criminal—criminal anthropology—which sought to identify certain criminal
“types” on the basis of skull size and shape and measurements of other physical features,
arguing that the “criminal” was a degenerate or primitive form of human.17 The criminal on
this account was abnormal, born not made, so punishment could not be based on the re-
sponsiveness of the will of the criminal to deterrent sanctions.
         It is perhaps not surprising that Lombroso figures large in Levay’s account, as Lom-
broso’s criminal anthropology seems to have been a particular target for the writers he
discusses.18 Lombroso’s account left little space for any kind of interiority. Crime was a
function of biology and not a matter of will—and so this was the antithesis of the aesthetic
project of the literary modernists. How could the complexity of mind be represented if the
mind was determined by biology? It is also worth noting that Lombroso’s project was itself
a kind of aesthetic project and perhaps makes more sense on this level than any other. It
was intensely visual, appealing to contemporaneous tropes of the atavistic man—the slop-
ing forehead, jutting out ears and prominent jawline—and linking this to pseudo-scientific
claims about the relationship between certain “types” and specific crimes. His major work,
L’Uomo Delinquente (1876), was, above all, a series of photographs and engravings of crimi-
nals from Italy, Germany and France, which invited the reader to judge their misshapen
qualities and measure the difference between themselves and the primitive or uncivilized
type.
         However, while Lombroso was clearly a diligent self-publicist, and his simple cari-
catures of the atavistic criminal were easily understood and had popular appeal, his theory
was widely criticized, even in his own times, and his work had little practical impact (even
in Italy).19 It was seen as overly simplistic, with little scientific basis and, most importantly,
it undercut the idea of free will that continued to lie at the heart of systems of criminal
justice. The version of penal modernism that had a greater influence was that based on the
idea of social defense, which understood criminality in terms of psychological concepts of
dangerousness and risk and which, as Foucault has shown, was able to integrate with legal

16I was struck that Lombroso was, in fact, the only criminologist discussed in the book. There was a brief
discussion of Havelock Ellis in the Introduction, but he is normally regarded as a popularizer of the ideas of
others in this field and is better known for his work on sexual “pathologies.”
17Lombroso’s best-known book, L’Uomo Delinquente (1876), was never translated into English. For discussion,
see 5 Leon Radzinowicz & Roger Hood, A History of English Criminal Law and Its Administration from
1750: The Emergence of Penal Policy ch. 1 (1986); Nicole Rafter, The Criminal Brain: Understanding Bio-
logical Theories of Crime (2008).
18It is a sign of Lombroso’s public profile that he was also referenced by writers such as Leo Tolstoy, Robert
Musil and Bram Stoker. See David Garland, The Development of British Criminology, in The Oxford Hand-
book of Criminology 31 (Mike Maguire et al. eds., 2d ed. 1997).
19   Paul Garfinkel, Criminal Law in Liberal and Fascist Italy chs. 1 & 2 (2016).

Farmer — Modernism and the Criminal                                                                  93

conceptions of responsibility. It was, above all, a version of penal modernism that was re-
sistant to the idea of innate criminality promoted by criminal anthropology.
         This suggests that Lombroso was something of a straw man for literary modernism,
and this is reflected in both the shifting focus of modernist writings and in Levay’s discus-
sion of the criminality they engage with. There are accordingly different, and shifting,
understandings of criminality at play in the book.20 The principal one is the idea of crimi-
nality as violence: Levay writes that modernist authors “conceived of crime as a
predominantly violent phenomenon.”21 This is then explored through particular forms of
violent criminality. There are the anarchist bombings explored in Chapter Two, which have
a particular kind of random quality and disrupt social order. Then there is the discussion of
criminal psychology in Chapter Four and the Conclusion, where the performance of vio-
lence is linked to the production of identity and the rejection of conventional norms.
Criminality in the book thus generally stands as a field on which the modernists could ex-
plore the representation of mental life. The “criminal” was taken as the object of the literary
modernist project for one of two possible reasons. On the one hand, this could be because
the figure of the criminal offered an interesting exemplar: crime was understood as a “cul-
tural extreme” and the figure of the “criminal” was thus taken to be an individual who
explored or symbolized this extreme in some interesting way.22 On the other hand, crime
might be symbolic of a certain randomness, or resistance, to order, classification, science.
Both of these seem to be at play in Levay’s book, and while they are clearly not equivalent
the first, in particular, raises some troubling questions which might have been explored in
greater depth.
         The largest of these questions concern the meaning of violence, the fascination with
the violent criminal, and why it is that violence should have such cultural significance. Does
violence really have aesthetic properties, as Chesterton suggested (though he did so in
jest)?23 Who uses violence and to what ends? Why should violent crime have been the field
on which modernist writers explored questions of the self-production of identity? What
about the victims of these crimes or how the victims represent certain patterns of victimi-
zation (of gender, ethnicity, class)?24 Of course, it is possible to respond that violent crimes
already played an “outsized role in public consciousness” and that these authors were
merely reflecting that.25 But we might go further to ask why this was apparently so readily
accepted by authors who were so ready to challenge other kinds of social and cultural

20   See also Levay’s discussion, in Levay, supra note 3, at 14-17.
21   Id. at 16—and, of course, this is also suggested by the title of the book.
22   See id. at 15-16 (discussing Eburne’s account of crime as cultural extreme).
23   Id. at 117.
 See Kemal Daoud, The Meursault Investigation (2015), a response to Albert Camus’s L’Étranger (1942), in
24

which the meaning of Meursault’s violent killing is seen as a form of colonial repression.
25   Levay, supra note 3, at 6.

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norms, and about the consequences of the role of modernism in “advancing the criminal
to such a position of cultural and literary prominence.”26
                                                        IV.
In Violent Minds, Levay sets out to explore the tension between the literary and the scientific
(criminological) imagination:
            One useful distinction between criminological and fictional approaches to criminality at the
            turn of the century—and one that underscores the argument of this book—is that fiction
            allowed authors to imagine multiple iterations of what the criminal mind might look like,
            whereas criminologists attempted more definitive arguments regarding what that mind nec-
            essarily was.27

However, I have suggested here that the aesthetic project of literary modernism seems only
to have engaged with penal modernism in a limited way and does not appear to have re-
flected critically on its own fascination with violence. This is a shame, because literary
modernism does potentially present a significant challenge to the project of penal modern-
ism in a way that would offer a more radical route out of the obscure labyrinth identified
by Foucault. The true logic of the literary modernist position is surely that if there really are
multiple iterations of the criminal mind then there is no such thing as the “criminal” mind.
There are individuals who perform criminal acts, but they are no different from any other
individual—except in the sense that every individual is different from every other. To chal-
lenge the idea that there is such a thing as the “criminal mind,” or to question the cultural
fascination with violence, would open the space for more radical literary, and penal,
modernisms.

26   Id. at 22 & Conclusion.
27   Id. at 11.