The goal of this session will be to give you a quick overview of the historical development of criminal justice, notably as part of the Western tradition within which Canadian law is broadly embedded. The movement of the criminal justice system is often understood to be from one of darkness to the Enlightenment, and certainly we have reason to be wary of justice as it was practiced in Europe in the Middle Ages. The confusion of canon and secular justice, the horrendous nature of punishment, the widespread use of torture and the general irrationality (at least to the modern eye) make much of primitive criminal justice seem almost unworthy of the name. The Enlightenment emerged as a response, in particular, to the irrationality of the Ancien régime, at least as much as to its inequity. By the same token, there is little doubt that the "invention of the prison" and the development of the modern carceral state have lead to their own very ambiguous outcomes. Moreover, early or non-Western penal traditions often merely evidence different forms of rationality, characterized by religious or mystical beliefs. Criminal justice has been struggling with these issues for centuries and recognizing their presence in today's debates is important.
It is important to understand that ideas about criminal justice have evolved in parallel to various ideas about crime and the ends of society. The criminal law was once mostly a way of enforcing religious beliefs. The protection of society or of the state has largely taken over in secularized societies. But strong remnants from that era persist, and as we will see in future sessions, one of the central debates in criminal law is whether crimes should reflect moral condemnation or whether crime should be dissociated from moral beliefs. In modernity, criminological thinking has hesitated between a liberal model focused on the individual as a rational and "free" actor, and a much more deterministic model that considers that certain persons are "criminals". The consequences in terms of criminal justice could not be more dramatic, and deterministic models have strong authoritarian tendencies.
One way of understanding the broad evolution of criminal justice is as a path towards greater institutionalization and centralization. The move from the vendetta to private justice to the criminal justice system as we know it is intimately tied to modernity and, in particular, the rise of the sovereign state. Many pre or non-modern traditions, by contrast, share common features (for example the ordeal is found both in the European Middle Ages and in some indigenous traditions). But the "modern" is never as "modern" as it thinks. In fact, within "modern" criminal justice the echoes of many long forgotten practices can be found: "trial by duel" as the origin of the accusatorial system or the inquisition as the origin of the inquisitorial tradition; outlawry and the contemporary treatment of terrorists or sex offenders, etc. In understanding earlier systems in their specificity, you will better understand what contemporary criminal justice is made of, both in terms of continuity and change.
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