Few phenomena expose the inner logic of power as unmistakably as the way a society chooses to punish. Beneath the apparatus of criminal law lies the question of who is granted authority over the human body in a given era and in which form.¹ The body of the offender has been viewed as a canvas of sovereign power, a site of silent disciplining, and a measuring instrument for biological deviation; from the early modern period through the twentieth century, it was incorporated into new regimes of interpretation and constructed as scientific evidence of criminality. How a society punishes reveals its understanding of power, sovereignty and social order. Criminal justice is not merely a technical instrument but a seismograph of an era’s self-conception.

The transformation of the body’s role in criminal law can be illustrated by the public execution of Robert-François Damiens in 1757.² Damiens had stabbed Louis XV with a pocketknife, inflicting a superficial wound.³ Disproportionate to the act, the punishment – corporal torture and quartering – answered to absolutism’s logic: power operated through visible presence. Since the king, as sovereign by the grace of God, was identical with the state itself, an attack upon his body constituted an assault on the divinely legitimated order. The body of the condemned thereby became a stage for the visible restoration of the injured sovereignty in a kind of ‘theatre of terror’, in which punishment became a pure demonstration of power rather than being a proportionate or rehabilitative form of punishment.⁴ Tellingly, this very staging failed: when the horses proved unable to tear the body apart and the ordeal dragged on for hours, the intended effect inverted into pity for the condemned and revulsion toward the judicial apparatus.⁵

Between the late eighteenth and early nineteenth centuries, the body lost its function as the site of ritual destruction: spectacular public display gave way to the invisible, systematic disciplining of mind and soul behind prison walls, and the vengeance of the injured sovereign yielded to the productive reintegration of the deviant individual.⁶ This paradigm shift marked the rise and professionalisation of the prison system in Europe.

Liberal theories of criminal law, however, criticised the concept of inner moral reform and regarded interventions aimed at changing a person’s character as an unlawful form of punishment. The sole purpose of punishment, they argued, should lie in retribution and compensation for the injustice committed. A core element of this theory was the individual’s free will, which formed the basis of the legal system. It declared the rational, male bourgeois subject, that was acting free from external and internal constraints and drives, to be the normal state.⁷ It is precisely here, as will be shown presently, that the influence of forensic psychiatry becomes apparent and where the body undergoes a fundamental change in its role.

The traditional principle of criminal responsibility and punishment faced a fundamental crisis when forensic psychiatry increasingly sought to interpret issues of criminal responsibility and claimed a role within the criminal justice system. Medical experts became interested in conditions in which ‘free will’ was no longer present or was at least restricted. With the expansion of classifications of mental or psychological disorders, the focus shifted to the instinctual nature of the human being that is driven by instinct, desires, and impulses. The indeterministic paradigm began to falter. Legal scholars defended the paradigm of free will and reacted defensively to psychiatry’s incursion into the domain of jurisprudence.⁸ Nevertheless, a division of labour between the judiciary and the psychiatric profession gradually became established, whereby medical professionals were regarded as competent to assess questionable mental states, while lawyers were to retain the final say on whether or not to follow this expert opinion.⁹ Historical studies show that the mental state of defendants was increasingly being assessed in court through forensic psychiatric expert reports.¹⁰

Psychiatry came to play a more prominent role not only in the courts, but also in criminal policy and, in particular, in the emerging field of criminology. In this context, criminal policy served as a testing ground for investigating the causes of crime, which led to the development of various disciplines within the field of criminology. The offender’s personality, i.e. his biography, mental and physical condition, became the focus of scientific interest. A key factor in the ongoing construction of the criminal personality was the mixture of medical, biological, and moral-ethical references. Criminal offenders were increasingly classified as psychologically abnormal and dangerous individuals from whom society needed to be protected.¹¹ The scope of psychiatric interpretation was thereby continually expanded as clinical pictures were formulated in the field of criminality that lay within a vaguely defined grey area between mental illness and normality. In this field, the psychiatrists could draw a connection between mental abnormality and crime. These ‘borderline conditions’ grew out of the degeneration theory by Bénédict Morel.¹² The theory of degeneration assumes that mental illness and social deviance (such as criminality) arise as a result of hereditary ‘degenerations’ of an ideal archetypal human type, which worsen from generation to generation. This paradigm of heredity became the dominant view in psychiatry, according to which a genetic ‘diseased constitution’ affected the entire personality. Traces of degeneration were said to be evident in the body (physical deformities).¹³ As a result, criminal behaviour was increasingly regarded as an expression of an abnormal psychophysical constitution as the following quote of the German psychiatrist Gustav Aschaffenburg demonstrates:

“Crime and mental disorder [are] two plants that draw their nourishment from the same soil, the soil of physical and mental degeneration”.¹⁴

A key catalyst for this medicalisation of criminal law was the Italian criminal anthropology, and above all Cesare Lombroso’s theory of the ‘born criminal’.¹⁵ This radically biological approach reduced criminal behaviour to purely endogenous factors. In this context, the body became an empirical measuring instrument and an object of analysis. Lombroso argued that criminals were not rational actors exercising free will, but rather ‘atavistic’ throwbacks – evolutionary accidents whose biological defects predetermined their deviance. To map this ‘born criminal’, Lombroso and his peers relied on physical markers, or stigmata, which they claimed indicated a savage nature.¹⁶ The ‘born criminal’ can be identified, in particular, by their physiognomy. Based on this logic, Lombroso developed various typologies of offenders:

“In general, thieves are notable for their expressive faces and manual dexterity, small wandering eyes that are often oblique in form, thick and close eyebrows, distorted or squashed noses, thin beards and hair, and sloping foreheads. Like rapists, they often have jug ears.”¹⁷

Despite all the criticism, the criminal anthropologists’ theories were the subject of serious academic debate and had a major influence on efforts to classify ‘criminal personalities’.¹⁸ In the late 19th-century, the nascent field of criminology shifted its focus away from the crime itself and onto the physical criminal as the following quote of Emil Zürcher, judge and professor for criminal law at the University of Zurich, suggests:

“The Lombroso school has set out to replace the foundations of modern criminal law […] with a different basis; it does not view the criminal act in isolation, but as a result of the personality of the perpetrator, as a symptom of an anti-social and therefore dangerous individual, and, following the example of medical science […] it seeks to make the betterment of the race, achieved through the elimination (selection) of those unable to adapt to society, the objective of criminal law. Much is still in the making, but the idea is grand enough to give rise to an international cosmopolitan movement; whether it proves to be true or false remains to be seen, but it suggests that the physical type of the criminal is itself a cosmopolitan one.”¹⁹

In light of these discussions and developments, we can see that the body increasingly became a source of knowledge. It functioned as an object that could be calculated and measured according to medical criteria. Furthermore, with the emergence of criminobiological frameworks, the human body of the criminal served as a ‘boundary object’. It allowed various professions in the fields of criminal law, criminology and criminal policy to collaborate in constructing the ‘criminal personality’. In this context, the body can also be regarded as the foundation and reflection of the apparatus of normality, against which the ‘other’ body – the criminal body – could be measured.

This function of the body was not only present in academic discourse but also had a significant practical impact. In court proceedings, reports and assessments by psychiatric experts were increasingly requested in cases involving a ‘doubtful mental state’. During these medical investigations, the identification of signs of physical degeneration served as a method of verifying the plausibility of a suspected mental illness, as the following example shows. 

In the criminal case of the ‘plait-cutter’ in 1906 in Berlin, a young student was accused of having repeatedly cut off the plaits of young blonde girls with a pair of scissors and keeping the severed plaits at home. As an explanation for his actions, he described an inner urge which he had ultimately been unable to resist. The defence lawyer spoke of a ‘pathological impulse’ which precluded the defendant’s free will. The court therefore wanted to have the defendant’s criminal responsibility assessed. The significance attributed to the body becomes particularly apparent in the testimony of the psychiatric experts. Although the case concerned rather minor offences, three medical experts were called to testify. The investigation of the defendant’s family history played a central role in this process. Biographical enquiries revealed that the defendant’s sister had allegedly suffered from ‘mental illness’. The consideration of this information points to the significance of the ‘paradigm of heredity’. Of particular importance was the connection established between psychological abnormalities and physical characteristics. One of the medical experts, Dr. Hoffmann, diagnosed the defendant as having a ‘genetic predisposition’ and pointed out that the physical examination had revealed numerous so-called ‘signs of degeneration’. On this basis, he concluded that the protection afforded by § 51 of the Criminal Code of the German Reich, which excluded criminal responsibility under certain forms of mental illness, might apply in this case. Dr. Leppmann likewise referred to the defendant’s significant family history of mental illness and to various ‘signs of degeneration’.²⁰

The case therefore provides an exemplary illustration of the extent to which criminal, psychiatric and biological forms of assessment became increasingly intertwined around the turn of the twentieth century. The irresistible urge described by the defendant himself was given a medical explanation through psychiatric assessment, thereby fundamentally calling into question his capacity for autonomous will. At the same time, this explanation was embedded within a broader model of inherited or constitutional deviation through reference to his family history and physical ‘signs of degeneration’.

In summary, this analysis reveals a fundamental transformation of the body in the history of criminal justice: what began as the locus of state power, where the physical exercise of punitive force upon the delinquent’s body rendered the sovereign’s unbounded authority visibly manifest, gave way with the onset of modernity to a fundamental inversion, as the body became the object of disciplinary intervention. Punishment withdrew from the public sphere into the confines of the prison, and criminal justice turned from bodily destruction toward the shaping of the mind and soul through targeted mechanisms of control. This trajectory culminated in a further reconfiguration, whereby the body was reconstituted as an analytical instrument, systematically documented and measured, no longer merely the object upon which punishment and discipline were enacted, but understood as the biological origin of criminal conduct itself.

Lorena Gisler is PhD candidate at the University of Bern and Research Assistant at the University of Lucerne.

Silvan Schenkel is Senior Researcher and Lecturer at the University of Lucerne and the University of Basel.

1Michel Foucault, Discipline and Punish, The Birth of the Prison, trans. Alan Sheridan (New York 1977), esp. 23 ff.

2Foucault, 3, 7 ff.

3For details on Damiens’s trial, see Pièces originales et procédures du procès, fait à Robert-François Damiens, tant en la prévôté de l’Hôtel qu’en la Cour de Parlement (Paris 1757).

4Foucault, 3 ff., 47 ff.; Jayne Mooney, “A Tale of Two Regicides”, European Journal of Criminology 11 (2) (2014), 228–250, 230 ff.; more broadly on public execution as a ritual of sovereign power, see Pieter Spierenburg, The Spectacle of Suffering, Executions and the Evolution of Repression: From a Preindustrial Metropolis to the European Experience (Cambridge 1984), 43 ff.

5Foucault, 58 ff.; Mooney, 231 ff.; on the ambivalent role of the crowd, see Spierenburg, 81 ff.

6Foucault, 8 ff., 32 ff., 170 ff., 195 ff., 293 ff.

7Urs Germann, Psychiatrie und Strafjustiz, Entstehung, Praxis und Ausdifferenzierung der forensischen Psychiatrie am Beispiel der deutschsprachigen Schweiz 1850–1950 (Zurich, 2004), 400.

8See for example Heinrich Pfenninger, “Grenzbestimmungen zur Criminalistischen Imputationslehre,” in Festschrift für Prof. Dr. Albert Friedrich Berner (Zurich, 1892), 94: “The medical expert (…) has (…) a tendency, due to his profession and inclinations, to identify symptoms of insanity, since he generally believes that free will does not exist. He finds it difficult to accept that the lawyer recognizes such a concept (…). He also has a tendency to draw conclusions that extend into the legal sphere.” (translation by the authors).

9Germann, 9 f., 123 f., 400 f.

10Richard F. Wetzell, “Psychiatry and Criminal Justice in Modern Germany, 1880–1933”, Journal of European Studies 39 (3) (2009), 270–289, 272 f.

11Germann, 401.

12Wetzell, 273 f. 

13See Eleni Rosiou/Markos Sgantzos/Grigoris Abatzoglou/Niki Papavramidou, “Bénédict Augustin Morel (1809–1873): The Originator of the Degenerative Theory of the Heredity of Mental Disorders and the Pioneer of the Biological Approach to Psychiatry”, Cureus (Sept. 16) (2024): doi: 10.7759/cureus.69523.

14Gustav Aschaffenburg, Das Verbrechen und seine Bekämpfung (Heidelberg 1903), 159 (translation by the authors).

15Cesare Lombroso, Criminal Man (1876), ed. by Mary Gibsonand, Nicole Hahn Rafter, and Mark Seymour (Duke University Press, 2006): https://doi.org/10.2307/j.ctv11vc7kd. 

16Katrin Höffler, “Tätertypen im Strafrecht und in der Kriminologie”, Zeitschrift für die gesamte Strafrechtswissenschaft (ZStW) 127 (2015), 1018–1058, 1022 ff.

17Lombroso, 51.

18Wetzell, 275 f.

19Emil Zürcher, “Die nationalen und kosmopolitischen Grundlagen des Strafrechts”, Akademische Antrittsrede, Zürich 1891, Schweizerische Zeitschrift für Strafrecht [ZStrR] 4 (1891), 1–13, 11 (translation by the authors).

20The “Plait-Cutter in Court – A Criminal Trial in Berlin in 1906. Based on the report by Hugo Friedländer”, in Interessante Kriminalprozesse von kulturhistorischer Bedeutung. Darstellung merkwürdiger Strafrechtsfälle aus Gegenwart und Jüngstvergangenheit, Band 6 (1912), 10. The third medical expert, Dr. Magnus Hirschfeld, concurred with the medical assessments.