Michel Porret, Le crime et ses circonstances. De l'esprit de l'arbitraire au siècle des lumières selon les réquisitoires des procureurs-généraux de Genève
Michel Porret, Le crime et ses circonstances. De l'esprit de l'arbitraire au siècle des lumières selon les réquisitoires des procureurs-généraux de Genève, Genève : Droz, 1995. xxxii + 555pp. ISBN 2-600-00079-8 (Lauréat du Prix Montesquieu 1995)
1This is a book about discretionary justice. How anodyne and beneficent that sounds ! Andindeed Michel Porret thinks there is a good deal to be said for it. Having devoted some years to poring over thousands of pages of the conclusions of the procurator-general of the republic of Geneva in criminal cases between 1738 and 1792, he bas been convinced that the Gilbertian principle of making the punishment fit the crime worked reasonably effectively. The chief prosecutors of this tiny but much observed republic of 23-30,000 dour Protestants devoted enormous attention to scrutinising the precise circumstances in which crimes were committed, and tailoring their recommended sentences accordingly. Their concern was more with exemplary deterrence than retribution. But in practice they exercised their discretion accordingly to well tried principles and precedents, which though formally uncodified, emerge clearly from sustained deep reading of their conclusions over the decades. The effect was to contain crime in Geneva. Here, as in the rest of eighteenth century Europe, the volume of criminality certainly grew, but much less than might have been expected, as a series of statistical appendices shows. And so, like other recent historians of eighteenth century judicial practice (for instance Richard Andrews in his study of the 'themistocrats' of the Paris Châtelet) Porret finds himself increasingly impressed by the equitable instincts and sheer professionalism of his magistrates.
2The one word he does not use about this corpus of judicial practice, however, is discretionary. The word he uses is arbitraire, and to translate it literally gives the picture a completely different character. For arbitrary was the term, which, for its enlightenment critics, summed up all that was wrong with contemporary justice. Enlightened jurists, like the thinkers of the Enlightenment in other fields, believed in uniform and inflexible laws for everything. True justice could only derive from equal treatment according to principles known in advance to potential transgressors. This was the impulse behind the codification of laws which had triumphed across most of the continent (including Geneva) by the early years of the nineteenth century. It did so after years of sustained criticism by legal and penal reformers, whose determination to blacken existing practices was so effective that it was accepted ever afterwards that old regime justice was cruel, capricious, irrational, ineffective, and generally indefensible. Until the current generation of scholars, few people even dreamed of testing this version empirically. But now they are beginning to do so, the magistrates against whom the reformers railed emerge as neither fools, nor knaves, nor slaves to timeless routines, but thoughtful men faced with urgent everyday problems which they tried to confront in a reasonable way. Moreover, their thinking evolved. Within the discretionary discourse which Genevan law or traditions obliged procurators – general to employ, Porret finds an increasing rationality and systematisation of practice which was making their jurisprudence ever less arbitrary in practice and so preparing the way for the ultimate recourse to codification in 1795. Reformers, therefore, were pushing at a door that was already being cautiously but steadily opened from within. Had the magistrates been creepingly convinced by enlightened arguments despite themselves ? Or had all minds been opened by the combined punitive, exemplary and rehabilitative possibilities of imprisonment ? Enter Foucault, stage left...
Pour citer cet article
William Doyle, « Michel Porret, Le crime et ses circonstances. De l'esprit de l'arbitraire au siècle des lumières selon les réquisitoires des procureurs-généraux de Genève », Crime, Histoire & Sociétés / Crime, History & Societies, Vol. 2, n°2 | 1998, 127-128.
William Doyle, « Michel Porret, Le crime et ses circonstances. De l'esprit de l'arbitraire au siècle des lumières selon les réquisitoires des procureurs-généraux de Genève », Crime, Histoire & Sociétés / Crime, History & Societies [En ligne], Vol. 2, n°2 | 1998, mis en ligne le 03 avril 2009, consulté le 26 avril 2017. URL : http://chs.revues.org/978Haut de page
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