FRANZ EDUARD RITTER VON LISZT (March 2, 1851 in
* 1 Early life
* 2 Career
* 2.1 Criminal Law Work * 2.2 Dispute of schools of thought on punishment * 2.3 International law influence
* 3 Works * 4 References * 5 External links
Franz von Liszt's father was Eduard
The Austrian title of nobility
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
In addition to the scientific aspect of the law, practical public
policy also appealed to him. He was active in
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
CRIMINAL LAW WORK
His criminal law textbook, which was first published in 1881 with the
title Das deutsche Reichsstrafrecht (German Imperial Criminal Law),
renamed Lehrbuch des deutschen Strafrechts (Textbook of German
Criminal Law) from the second edition, finally reached 26 editions by
1932. It presented a systematic approach to legal doctrine based on
liberal ideas and the
Rechtsstaat . A study of his influence and
impact on criminal law should start with the "
So his demands were: improvement of existing societal conditions and penal measures specifically aimed at the rehabilitation of the offender. With this in mind, he advocated differentiation of special prevention based on types of offender:
* "occasional offenders" should receive a suspended sentence as a lesson; * "reformable offenders" should receive longish custodial sentences, to be accompanied by rehabilitation measures; and * "non-reformable offenders" should be given very long custodial sentences to protect society.
In 1889, he co-founded the International Criminal Law Association (German: Internationale Kriminalistische Vereinigung). His ideas were reflected in the penal reforms of the 20th century: abolition of short custodial sentences; suspended sentences on probation; measures for rehabilitation and societal protection, rehabilitation of 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
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 , 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.
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.
* The German Reich Criminal Law, Berlin, 1881
* The Purpose of Thought in Criminal Law,