Juliusz Makarewicz: A Key Figure in Criminology
The main author of the 1932 Criminal Code, Juliusz Makarewicz, is largely forgotten today, but his influence on criminology and criminal law was enormous and reverberated well beyond the borders of Poland. Unlike many of his contemporaries, Makarewicz viewed crime as a social-psychological phenomenon, with deeply rooted causes and solutions, not simply a legislative problem to be addressed with new laws.
In 1933, there was a spate of rape-murders in Łowicz, Poznań and Włocławek. Newspapers all over the country detailed these horrific acts, so that when the ‘Vampire of Łowicz’ was finally caught, the Tadeusz Ensztajn trial became a national event. This gruesome tale found willing audiences, but the coverage differed somewhat from other serial murder cases because it so often focused on the biography of the criminal. One newspaper account asked, ‘How did he come to these criminal acts? What motivations directed him to commit so many rapes and murders? Is it degeneration, depravity, sexual immorality, or just psychological disorder’?
Ensztajn claimed that a Russian soldier had raped his mother who then left him in an orphanage as a young child. His past had become such a central part of the trial because the new Polish Criminal Code of 1932 put particular emphasis on elements of an individual’s psychology, upbringing and motivations for committing crime. This allowed for significant leeway in the consideration of guilt and punishment. In the end, Ensztajn received a relatively light sentence, 15 years in prison, for his heinous crimes.
The main author of the 1932 Criminal Code, Juliusz Makarewicz, is largely forgotten today, but his influence on criminology and criminal law was enormous and reverberated well beyond the borders of Poland. Unlike many of his contemporaries, Makarewicz viewed crime as a social-psychological phenomenon, with deeply rooted causes and solutions, not simply a legislative problem to be addressed with new laws.
In 1871, Makarewicz was born in Austro-Hungarian Sambor (present-day Sambir, Ukraine) and spent much of his life in and around Lwów (now Lviv).
After completing his doctorate in law, he went to Germany to continue his studies in Halle and Berlin, where he took part in courses led by Franz von Liszt (not the composer). Liszt was a pioneer in introducing sociological thought into the composition of criminal law. As such, Liszt thought about criminal law as a system to prevent crime from happening in the first place – through deterrence and the improvement of people’s lives, as opposed to meting out harsh retribution on deviants.
The other great influence on Makarewicz was the Italian Cesare Lombroso’s 1876 work, L'Uomo Delinquente (The Delinquent Man), which effectively founded the field of criminology. In the short term, Lombroso’s thought was used to justify racialised ideas of where criminality comes from – since he popularised, for example, the idea that hot-blooded southern Europeans are more prone to crime because of generations of racial mixing across the Mediterranean. However, in the long term, Lombroso turned the focus away from the crime itself toward the individual committing the crime so that punishments would be tied to the circumstances of the individual, allowing for an assessment of whether the person is capable of reform or not. And though we may certainly chuckle at his promotion of phrenology – studying skull shapes – the Italian sociologist introduced scientific methods into the study of why crime happens and how to prevent it.
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Juliusz Makarewicz, member of the Codification Committee, photo: National Digital Archives / www.audiovis.nac.gov.pl (NAC)
Makarewicz became a notable scholar of criminal law, publishing numerous works in Polish and German, including the enormous textbook Introduction to the Philosophy of Criminal Law (1906).
A pamphlet published in 1912 entitled The Sources of Criminality shows the evolution of his thought and talent as a writer, as he weaves literary examples into legal and philosophical discussions. He presents some of the more obvious answers to the title question, in that poverty and alcoholism are to blame for many crimes. But the crux of his argument rests on particularly religious grounds – that the absence of religion (Catholic Christianity) in people’s lives has led them to live without morality. At the outset, Makarewicz compared the history of crime with the story of sin. Every individual who pushes the limits of their freedom determined by social norms will be viewed as a criminal. And since the absence of religion is the cause of crime, certainly the solution would be more religion, in his view. As Makarewicz writes:
Text
A society that wants to reduce the number of crimes, must strive to raise the ethics of individuals – it must cultivate this morality (not just teach it). An outstanding element in this regard is, aside from family, well organised schools that can, not only provide a certain amount of knowledge, but prepare the individual for social life by putting into his soul the right amount of incentives discouraging him from criminal acts.
Author
From ‘Źródła Przestępczości’ (The Sources of Crime), 1912, p. 16, trans. ZM
In the Catholic Habsburg Empire, where Makarewicz had spent his entire life, it was not impossible to imagine that schooling would focus more on instilling these religious values that he strove for.
Throughout the years prior to the First World War, much of his work focused on achieving some kind of ideal law – one that would serve justice, be fair to both the accused and the victims, and prevent crimes from taking place. In independent Poland, he would have the opportunity to do just that.
As a leading scholar of criminal law, Makarewicz was brought from the university in Lwów to Warsaw so he could participate in discussions over what to do about the criminal law system in Poland. The new country had to bring together at least three different legal systems from Germany, Austria-Hungary and Russia. Each had been introduced at different times in history, representing very different visions of guilt, free will, punishment and the criminal. The Russian Code was relatively recent, from 1903; the German Code was from 1871; and the Austrian Code was the oldest, from 1852. These defunct empires had been formally replaced with new nation-states like Poland, but they carried on a new life in their continued usage in the so-called successor states. Codices could not be written overnight, and so they continued to be in use for many years after 1918.
At one of the first meetings of the criminal law group, the committee was asked to vote on what they wanted to do – either adopt one of the existing legal codices to all three parts of the country, compile two or more codices into one, or write a whole new criminal code. Practically without debate, they decided unanimously to write a novel code.
This was yet another influence of the sociological school and Franz von Liszt, who believed that laws must reflect the society and culture they operate in. This rather spiritual ideal indicates that the laws of a nation are the reflection of entire cultural outlook. It would therefore be unacceptable, in their eyes, to use ‘foreign' laws in Poland.
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Prison in Lviv, 1933, photo: National Digital Archives / www.audiovis.nac.gov.pl (NAC)
This did not prevent Makarewicz from searching far and wide for the best solutions. As a man of science, he believed that there were fundamental issues of crime and society that had to be solved through a legal framework, embodied in the code. Makarewicz studied the recently enacted codes of Mexico, Chile and Burma for inspiration. This work also pushed him to experience these different systems firsthand, and to that end, he spent two summers in the United States, in 1928 and 1929. While there he visited prisons, including Ionia in Michigan and Sing Sing in New York. He also visited psychological hospitals to learn about the treatment of those deemed a danger to society. American prisons in the north had long been under the influence of reformers interested in more humane approaches, including job training programs and schooling for prisoners. Makarewicz borrowed heavily from what he saw in his recommendations for Poland’s new direction.
After many years of work, the final product came together in 1932. Makarewicz authored the Principles of the Polish Criminal Code as a kind of introduction to the published laws. In it he described the three defining characteristics of their achievement. Firstly, the code takes into account ideas of subjectivity and individualism. In the past, criminal laws were applied to a certain act rather than the person committing the act or its circumstances. So for example, most legal systems did not allow any leeway for the mentally or psychologically disabled to receive help instead of being thrown into prison. These kinds of changes were monumental and deeply philosophical. Not everyone is completely in possession of free will, after all.
Secondly, the code wanted to change the way people think about punishing criminals. In the most elemental sense, prisons were used to enact retribution on an offender for their actions. So in that way, society can get its repayment for the crime. But criminal sciences shifted toward the idea that criminal justice should aim to correct the criminal by nurturing him back into society. With the explicit goal of aiding an individual, as opposed to simply punishing them, the hope was that they would not become repeat offenders. The balance between punishment and rehabilitation has persisted into today, but Makarewicz strongly stood on the side of helping people rather than forcing them to submit. Sentencing and prisons should be guided by humanitarianism, he argued.
Thirdly, Makarewicz walked back the previous point a bit, in the fight against ‘professional or impulsive crime, often resulting from the psycho-physical system of the perpetrator’. At the time, there was rising awareness of organised crime, mafias and gangs with complex structures. Professional criminals often cynically viewed the prison experience as a time for rest and free meals. For these types of criminals, a different set of punishments had to be applied.
All of these principles were guided by what can be labelled ‘subjectivism’, or a rejection of rules that can be applied blindly to every case. Makarewicz wanted the law to reflect real life, and not merely theoretical ideas. This turned the focus of the judge and jury toward the psychology of the individual at the time when a crime is committed.
The motives of the criminal in particular became key. Did someone commit a crime for profit? For ‘low’ motives? Or because of something high-minded?
The 1920s and ’30s saw several high-profile murders whose perpetrators went unpunished. In 1921, an angry young Armenian living in Berlin assassinated the former Grand Vizier of the Ottoman Empire in retaliation for the Armenian genocide. In 1926, a young Jewish man assassinated the former Ukrainian leader Symon Petliura in Paris to avenge 14 family members murdered during pogroms that took place while Petliura was president of the Ukrainian People’s Republic (1918-1921). In both cases, juries acquitted the gunmen of all charges because the public saw their actions as justified, or even laudable. One of Makarewicz’s most famous students, Rafal Lemkin – who went on to invent the legal definition of genocide – called the murder of Petliura a ‘beautiful crime’. In the new code, Makarewicz created the legal space for the criminal justice system to recognize such ‘beautiful crimes’ and ensure that the perpetrators are treated leniently.
Above all, Makarewicz wished to create a set of laws that could be easily understood by all people in society. One section of the code even foresees a reduction in sentencing if the criminal was unaware that their action was illegal or morally wrong. This was intended to have a two-fold effect. On the hand, Makarewicz believed that people who are aware of the definitions of crimes and punishments awaiting them will be much less likely to commit crimes. On the other hand, simplifying the law allows even the least educated members of society to feel that the law is also for them, not something foreign or exclusively for elites. Though it may seem naively idealistic, Makarewicz truly believed that a perfect law for all people could be designed with the right scientific backing.
Makarewicz, with a new set of ideas, transformed the functioning of police stations, courts and prisons in Poland.
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Amnesty in Spain after the victory of the Popular Front, 1936, photo: National Digital Archives / www.audiovis.nac.gov.pl (NAC)
After his monumental achievement in 1932, when the new code came into force, Makarewicz returned to his teaching and research in Lwów. In these years he wrote about changes to law in Nazi Germany and the Soviet Union that no longer considered humanitarian ideas or the basic rights of all people. His commentaries on the fading rule of law abroad were also subtle critiques of authoritarianism inside Poland at the time. Political prisoners had become the targets of criminal prosecution, while the well-connected could act with impunity.
When war struck in 1939, Makarewicz stayed put in Lwów and continued his work in the university. Through the Soviet and Nazi occupations, he never gave up teaching, and did so at great personal risk. When the Red Army took the city again in 1945, the NKVD (predecessors to the KGB) tossed him into prison, along with other elites and professors deemed dangerous. Thanks to defenders in high places, he was released rather quickly.
Rather than flee the city, as so many Poles did at the time, Makarewicz decided to stay in his beloved Lwów, now renamed Lviv, in Soviet Ukraine. As the new authorities transformed the university, he didn’t shy away from continuing to educate the next generation of lawyers and criminologists. His expertise was in what was labelled ‘bourgeois’ criminal law, since he taught on foreign legal systems outside the communist bloc. He remained at his post until his death in 1955, as the last Polish professor in the Soviet university.
Written by Zachary Mazur, Jun 2021
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