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Urs Germann
This chapter discusses the influence of penal positivism on the codification of Swiss criminal law. It covers the period between 1890 and 1937, when the first Swiss criminal code was enacted. In Switzerland, the notion of penal or scientific positivism has never been very common. Nevertheless, the program of social defence, promoted by different international reform movements from the 1870s onwards, was crucial for the elaboration of the criminal code of 1937.
In Switzerland, criminal law reformers emerged as part of a multifaceted movement that united different professional groups, including lawyers, prison administrators, psychiatrists and youth welfare experts. From 1890 onwards, the political effort to unify cantonal legislation acted as a catalyst for the transformation of criminal law, allowing reformers to exert considerable influence and introduce important aspects of social defence into legislation.
In the end, Swiss criminal law reform would be a quite pragmatic undertaking. Reformers contented themselves with partial, select modifications, refining existing means of social control rather than putting fundamental principles of liberal law in question. The pragmatic character is also evident when one considers the reformers’ reticence about positive science. At the core of the reforms, the drafts of the criminal code conceived of a dual-track system in which regular penalties were complemented by security and treatment measures. This made it possible to introduce indeterminate prison terms for specific classes of “abnormal” criminals, which included multiple recidivists, the mentally impaired, minor offenders or those addicted to alcohol. At the same time, these drafts suggested conditional sentencing for “occasional” and other “respectable” offenders. The combination of repressive and rehabilitative approaches was thus an important feature of criminal law reform in Switzerland.
Swiss criminal law is still based on the reforms enacted in 1937, and while they were the result of democratic processes, they remain problematic. On the one hand, these reforms were suffused by traditionalistic and moralizing interpretations of social deviance and by constant fears about the fragility of the social order. On the other hand, particularly with regard to security and treatment measures, prison administrators and public authorities were given greater scope for action at the expense of the rights of offenders. Swiss criminal law reform thus exemplifies fundamental legal and political problems surrounding the implementation of penal positivism in the 20th century.
