José Franco-Chasán, The Reception of Positivism in Spain: Pedro Dorado Montero (Springer, 2023). $159.99 (paperback). 226 pages.
Victorian jurist Sir Henry Sumner Maine is purported to have said that “nobody cares about the criminal law except theorists and habitual criminals.” Probably even fewer people care about the intellectual history of criminal law—habitual criminals not being known to trace lines of theory to different thinkers. Given the general apathy toward the subject, one could fairly ask whether it’s worth the effort to read a book about the legacy of a Spanish penalist whose works have never been translated into English. Those concerned with the processes by which legal and social change occur would find such a work well worth their time and effort.
Dr. José Franco-Chasán’s book, The Reception of Positivism in Spain: Pedro Dorado Montero, captures a specific moment and process in Spanish legal and intellectual history through the lens of one pivotal figure, Pedro Dorado Montero (1861–1919). Dorado Montero’s ideas played a key role in transitioning modern Hispanic legal thought from its neoclassical foundations to a positivism more aligned with the rest of Western Europe. Notably, as Franco-Chasán declares from the outset, this book is not an analysis of Dorado Montero’s philosophy, but rather explores how he “introduce[ed] positivism in Spain via the back door.” From his perch at the University of Salamanca, Dorado Montero’s scholarship synthesizing international developments in criminal law and sociology, his translations of key positivist thinkers into Spanish, and his formation of intellectual disciples would augur a “silent spreading” of positivism in Spain.
In mid-nineteenth century Italy, a new generation of positivist theorists revolted against the then-dominant neoclassical criminal law of the Enlightenment. Neoclassicalism—which had itself arisen in response to the perceived abuses of arbitrary medieval justice—emphasized the legality principle (that punishment be reserved for legally defined crimes), the equality principle (that like crimes be punished alike), the retribution principle (that punishment was the payment of a debt to society), and individual free will. In place of neoclassicalism’s abstract reasoning however, the positivists preferred a more “scientific” approach, based on “experience”—with conclusions “extracted from observation, study, and the classification of facts”—not unlike their contemporaries Darwin, Spencer, and Marx in their respective fields.
Positivism rejected such metaphysical concepts as free will in favor of a scientistic determinism that at its worst manifested in pseudoscience like eugenics and phrenology, by which theorists purported to identify “born criminals” through physiological traits like “prominent cheekbones,” slanted eyes, “asymmetrical faces,” or “enormous and square jaws.” At its best, however, positivism curbed injustices of neoclassicalism by introducing judicial discretion in sentencing, individualized punishments, and the idea of punishment as treatment. Positivism would ultimately provide the foundation of contemporary criminal law, hence the importance of analyzing how it took root (or failed to) in a particular place.
Positivism was late to come to Spain, but come it did—at least in partial, acculturated form—thanks in large part, as Franco-Chasán ably demonstrates, to the as yet underappreciated work of Dorado Montero. Dorado Montero is a curious figure to have become “one of the greatest masters of ‘legal change’ in Europe.” While this partially disabled son of peasant farmers would grow up to become “one of the most well-educated scholars in Europe,” he was also a “shy,” “over-reflective,” and wracked by “transcendental doubt” stemming from his denial of free will. Franco-Chasán does well however to show that “it was this eternal doubt which made Dorado Montero the way he was” and led him to develop “one of the most critical theories in all of nineteenth century Europe.”
Franco-Chasán begins the book by detailing Dorado Montero’s biography, from his strict Christian education to his postdoctoral sojourn to Italy, where he was first introduced to the work of the positivists. After some academic career jockeying and a few confrontations with his less than enthusiastic bishop, Dorado Montero settled into the Chair of Criminal Law at the University of Salamanca, where he would remain from 1892 until his death in 1919, and from whence he developed into “both a prolific writer with cutting-edge academic publications, and a devoted and outstanding teacher” and further became one of Spain’s “most internationalised authors, speaking several languages, and attending international congresses.”
One of the recurring themes in the book is Franco-Chasán’s attempt to classify Dorado Montero’s thought. While Dorado Montero was indelibly marked by positivist thought, he was not, himself, a pure positivist. Franco-Chasán admits that Dorado Montero “was not amenable to a clear doctrinal categorization,” and finally reasons that it is fruitless to label his thought as anything more than “Doradian,” noting the “personal” element of Dorado Montero’s positivism. Dorado Montero respected the positivists and shared with them the idea that there is no free will and the notion that retribution has no place in a theory of punishment, but he frequently criticized positivist thinkers for their failures to live up to their own ideals. Where many positivists saw born criminals and hated what they saw, Dorado Montero felt pity and dedicated himself to the protection of criminals; according to his view, “the main goal of punishment should not be plain prevention but real reform of the criminal.”
Dorado Montero’s magnum opus, Derecho Protector de los Criminales (“Protective Law of the Criminals”) was essential in Spain’s movement in practice, if not in theory, from penal retributivism to rehabilitation, and affected a shift in perception of the criminal. His determinism led him to conclude that criminals “were not evil individuals who acted selfishly,” but rather “sick persons” who deserved from the state “mercy and compassion—specifically, a treatment to raise them out of their ‘moral inferiority.’” Dorado Montero had no time for adversarial proceedings and was inclined to subordinate individual rights to “the effectiveness of the treatment” and dispense with attorneys in favor of “judges specially trained in the relevant disciplines (anthropology, psychology and sociology)” and “provisional diagnosis.” This was not, of course, a “practical model” and “did not become a real system.” Nevertheless, it had a considerable effect.
Dorado Montero “was immersed in a world of abstract ideas.” As Franco-Chasán compellingly notes, “he sought to change criminal law through legal philosophy, not through dogmatics.” It was this relentless pursuit of absolute “coherence of thought” gave Dorado Montero the unique ability to critique the extremes of the new and old schools, bemoaning the inconsistencies of the neoclassicists and positivists alike, ultimately tempering their respective tendencies toward absolutism and changing the terms of the debate. Paradoxically, this same logicality led him to envision a system which could not be.
Part of what made Dorado Montero the perfect conduit for positivism in Spain was the way his positivism was tempered by Christian ideas and language. Though he had repudiated the faith of his childhood and its touchstone of free will, Dorado Montero was indelibly marked by his Christian education. In his work, “religious expressions vie on the one hand with determinist assertions on the other.” Unintentionally, “he adapted a positivist narrative to the language found in the predominant morality.” So successful was Dorado Montero at blending the language of the different schools that after his death, each would attempt to claim him. Ultimately, his work led Spanish doctrine to accept positivist premises concerning the “mechanisms of the determination” of criminal penalties—that is, individualized punishments tailored to an offender’s circumstances—even as it stubbornly clung to retributivism to justify punishment.
Although the book is ostensibly about Dorado Montero’s role in the reception of positivism in Spain, Franco-Chasán takes a substantial detour in Chapter 4, where he traces Dorado Montero’s intellectual influences, listing 14 theorists from Kant to Ferri to Tolstoy to Garofalo and describing in detail their ideas and Dorado Montero’s engagement with their work. As befits a Spaniard who spent years in Germany, Franco-Chasán showcases his mastery of an extensive collection primary sources ranging across languages and countries. This is a tour-de-force through nineteenth century European criminal philosophers and social theorists, but the connection to Dorado Montero’s role as a transmitter of positivism is tendentious. The chapter is of great value in introducing the work of Dorado Montero to an English-speaking audience, and establishes Franco-Chasán, alongside Laura Pascual Matellán,[1] as one of the foremost authorities on Dorado Montero, but on the whole fails to substantially progress his thesis.
Franco-Chasán is at his best in Chapter 6, where he situates Dorado Montero’s thought does well to correct prior misconceptions of Dorado Montero’s philosophy, dispelling any notion that he believed in free will.[2] While different schools at different times sought to claim Dorado Montero or emphasized certain aspects of his work in an effort to claim him, Franco-Chasán demonstrates that even as it is sometimes mistaken as a third way or synthesis, Dorado Montero’s work is in fact unique and more consistent than the pure neoclassical or positivist schools.
Dorado Montero’s chief relevance today is twofold. First, his ability to plant the seeds that would eventually effectuate a sea change in the foundations of the Spanish criminal law is worth exploring for other would-be reformers. Second, Dorado Montero’s prophetic vision of individualized criminal punishment anticipates where our law may yet go. Franco-Chasán paints a portrait of a humane thinker “fully aware that his system was so ahead of its time that it could not be implemented except far in the future.” However, he also warns us that simplistically “pointing out that he was very ahead of his time also tends to distort any analysis of the reception of doctrinal positivism in Spain.”
The chief contribution of this work is the manner in which it simultaneously introduces Dorado Montero to an English-speaking audience and demonstrates his unique role in laying the groundwork for Spanish positivism. Dorado Montero sought and achieved “a radical change of model, but in a very calm, discreet manner.” As Franco-Chasán poetically frames it, “Just as a silent water drop corrodes and deforms the shape of a rock, the Spaniard quietly introduced new trends and altered the reigning conceptions of Penal law.” Today’s would-be reformers ought to take note.
[1] Pascual Matellán, Pedro Dorado Montero: Vida y Obra de un Pensador Heterodoxo (Salamanca: Ediciones Universidad de Salamanca 2019); Pascual Matellán, Pedro Dorado Montero y el Correcionalismo Español: El Difícil Desafío de Humanizar el Derecho Penal (Valencia: Tirant Lo Blanch 2021).
[2] See, e.g.,López-Rey, Pedro Dorado Montero, 46 J. Crim. L., Criminology & Pol. Sci. 605 (1956) (arguing that Dorado Montero was more neoclassical than positivist).