Who Dares Fine a Murderer? The Changing Meaning of Money and Fines in Western European Criminal Systems
| DOI | 10.1177/0964663915618545 |
| Date | 01 August 2016 |
| Published date | 01 August 2016 |
| Author | Patricia Faraldo-Cabana |
| Subject Matter | Articles |
Article
Who Dares Fine
a Murderer? The
Changing Meaning
of Money and Fines
in Western European
Criminal Systems
Patricia Faraldo-Cabana
University of A Corun˜a, Spain; Freiburg Institute for Advanced Studies (FRIAS),
University of Freiburg, Germany; Queensland University of Technology, Australia
Abstract
This articleoffers a comprehensiveanalysis of the historical developmentof the penal fine as
a sanction from the point of view that the changing meaning of money influences the per-
ceived appropriateness of fines as a punishment for every type of offence, or only certain
offences.As it is shown here,a series of associationsbased on the ideaof money, its essence
and its capabilities had a profound impact on modern Europeanlegal culture. The different
perception of the significance of money in contrast to freedom explains the rise of impri-
sonment in the 19th century. The present use of fines to punish less serious crimes and
misdemeanours withinthe criminallaw is mainly a directconsequence of thedevelopment of
money andits characteristicsof impersonality andinterchangeabilitysince the 19th century.
Keywords
European criminal systems, fines, imprisonment, legal history, money, regulatory law
Money is probably the most frequently used means of punishing, deterring, compensating
and regulating throughout the legal system.
O’Malley, 2009: 1
Corresponding author:
Patricia Faraldo-Cabana, Facultad de Derecho, University of A Corun
˜a, Campus de Elvin
˜a s/n, 15071 A Corun
˜a,
Spain.
Email: patricia.faraldo@udc.es
Social & Legal Studies
2016, Vol. 25(4) 489–507
ªThe Author(s) 2015
Reprints and permission:
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DOI: 10.1177/0964663915618545
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Introduction
Time and money are the greatest scarcities of modern life. Therefore, it should come as
no surprise that loss of time, in the form of imprisonment, and loss of money, in the form
of a fine, have become the two basic foundations of most Western European criminal
systems. Fines outnumber any other penal sanction, including deprivation of freedom,
in many countries. However, legal scholars, criminologists and sociologists write about
prisons and imprisonment as if fines did not exist. This trend makes it almost impossible
to fully understand the historical evolution of the penalty of imprisonment since it is inti-
mately related to the reasons why fines were first abandoned and then re-established. At
the same time, a more comprehensive analysis of the uses of money as a sanction is also
needed, because views on money influence the perceived appropriateness of fines as a
punishment for every type of offence, or only certain offences. More than a century ago,
Simmel’s seminal study on the philosophy of money suggested the need for a closer and
more detailed interpretative analysis of the meaning of money since the effects of money
transcend the market (Simmel, 1990 [1907]). This remains more urgent than ever in the
fields of criminal law, criminology and the sociology of punishment, in which the nature
of the very special monetary relation between the offender and the state that constitutes
the essence of the penal fine has been generally neglected by literature.
In fact, the small amount of attention Anglophone legal scholars, criminologists and
sociologists of punishment and social control give to the role of money and fines in the
criminal system is extremely surprising (as indicated by Bottoms, 1983: 168; Young,
1989: 47; O’Malley, 2009 or McCallum, 2011: 541). In contrast, the quantity and quality
of works relating to the fine in Germany is huge. They also cover the entire codification
period to the present, and the perspective taken is, in many cases, historical. This intense
attention devoted to the fine was well known in the countries of its area of influence. Not
only in German-speaking countries, as one would expect (Austria and Switzerland), but
also in those strongly influenced by German law at various times in their academic his-
tory: Italy, Portugal and Spain.
Taking this into account, the purpose of this article is twofold. First, it intends to make
some of the vast ‘non-English–speaking’ literature about fines known to the Anglophone
academic world. This explains why references used are not only in English but also in
German, Italian and Spanish. Second, it aims to provide support for the view that the
present use of fines to punish less serious crimes and misdemeanours within the criminal
law is mainly a direct consequence of the development of money and its perceived char-
acteristics of meaninglessness and impersonality since the 19th century. Thus, the fine is
analysed focusing not only on the meaning of punishment but on the neglected dimen-
sion of money, stressing that the equivalence of money and punishment is not as straight-
forward as is sometimes assumed in mainstream literature, which has overlooked the
significance of money in the historical evolution of punishment.
As we will see, a series of associations based on the idea of money, its essence and its
capabilities had a profound impact on modern legal culture. These associations gener-
ated a pattern of practices and dispositions that have strongly influenced the way we see
the payment of a sum of money to the state as a ‘suitable’ punishment only for some
offences. Quite surprisingly, whilst in market societies, we could say that in principle,
490 Social & Legal Studies 25(4)
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