Franz Exner

Franz Exner (9 August 1881 – 1 October 1947) was an Austrian-German criminologist and criminal lawyer. Alongside Edmund Mezger, Hans von Hentig and Gustav Aschaffenburg, he was a leading and in some respects a representative of the German school of criminology (which at that time tended to treat criminology as a branch of Jurisprudence, rather than as a branch of the Social sciences) in the first half of the twentieth century. During the 1920s and 1930s, Exner produced work on the interface between Criminology and Sociology. He became a controversial figure among subsequent generations because of the extent to which during the 1930s and 1940s his ideas evolved towards National Socialist ideology, notably with regard to so-called "criminal biology", which, by more recent criteria imputed excessive weight to the role of hereditary factors (as opposed to environmental influences and pressures) as causes of criminal actions.

Life Family provenance Franz Exner was born in Vienna. On his father's side he came from a family of intellectuals and high achievers. His grandfather, Franz Serafin Exner (1802–1853), had been a professor of philosophy at Prague and, through his Herbartian advocacy and writings, one of the architects of important Austrian school reforms in the later nineteenth century. His father, Adolf Exner (1841–1894), was a Law professor. His uncles Karl, Sigmund and Franz achieved notability in the fields, respectively, of Physics, Psychology and (again) Physics, while his aunt was both the mother of a future Nobel Prize winner and the wife of a leading Viennese urologist. His mother, born Constanze Grohmann (1858–1922), was the daughter of a factory owner. Still not quite 19, he now took what amounted to a gap year, which he spent as an army volunteer in the Salzburg-based 41st field gun regiment. He then studied Jurisprudence at Vienna and Heidelberg between 1901 and 1905. Exner was devastated by the loss of his younger daughter and then of his wife: there would be no second marriage. Even in 1916, Czernowitz felt exotic, and a very long way from Vienna, and in professional terms many of his younger colleagues regarded their professorships as stepping stones rather than permanent postings. In a personal note from 1922, found in his personal papers long after his death, he likens the journey to travelling "in the wild east". The Exners had originally intended that their second child should be born at Czernowitz, but in the end this was deemed "too dangerous" and Marianne remained in Vienna for the birth, which took place on 28 December 1912, and was followed by the baby's death a few days later. Increasingly during this period Exner was separated from Marianne and the two (after 1914) surviving children who preferred to remain safely in Vienna or stay with Franz Exner's mother at the family estate surrounding Schloss Matzen. The separation was intensified when Exner was called away to fight between 1914 and 1916. Marianne wrote every week, sending copious supplies of food and cigarettes. Her letters contain abundant detail of her mundane life with the children, their nanny "Pepi" and "Lord", the dog. They also show how desperately affected the couple were by their continuing enforced separation. The race laws were progressively further tightened during the ensuing twelve Nazi years, but somehow Franz Exner would retain his professorship at the Ludwig-Maximilians-Universität München throughout (and beyond) the Hitler years. In March 1941, Franz Exner underwent another follow-up investigation into his "racial purity", and although he retained his professorship, he was removed from the Ludwig-Maximilians-Universität München's Governing Council ("Verwaltungsrat") shortly afterwards. By the time he died in 1947 he was one of a very small number of well known criminologists to have studied and taught under no fewer than four contrasting ruling establishments: the (1) Danube Monarchy until 1918, the (2) German Republic until 1933, the Populist-nationalist Dictatorship until 1945 and the (4) Stalinist annexations and military occupation that followed. After the launch of the German Federal Republic (West Germany) in 1949 it transpired that his reputation would remain, if not untarnished, at least broadly intact under a fifth ruling establishment. During 1934 during the long vacation he undertook a visit to the United States lasting several months and was able to meet up with Sutherland face-to-face. He also met up with others in the field, including Ernest Burgess (also at Chicago) and Thorsten Sellin at Philadelphia. On his return he shared his experiences of the American system of Penology and his researches into the latest associated academic literature, publishing his "Kriminalistischen Bericht über eine Reise nach Amerika" ("Report on Criminology from a visit to America") in 1935 in the quarterly specialist journal Zeitschrift für die gesamte Strafrechtswissenschaft.

Nuremberg In 1946/47, Exner teamed up with another law professor, Hermann Jahrreiß, to appear at one of the Nuremberg military tribunals as the defence team representing General Alfred Jodl in his trial for war crimes. Jodl, who had served as the Chief of the Operations Staff of the German Armed Forces High Command throughout World War II, was convicted and was hanged on 16 October 1946.

Memberships and learned journals Franz Exner was a member of the Austrian regional group of the International Criminology Association ("Internationale Kriminalistische Vereinigung" / IKV) from 1911. In 1936, he teamed up with fellow-jurist Rudolf Sieverts and the physician-psychiatrists Johannes Lange, Hans Reiter and Hans Bürger-Prinz to co-produce the "Monatsschrift für Kriminalpsychologie und Strafrechtsreform" (rebranded in 1937, out of deference to National Socialism, as the "Monatsschrift für Kriminalbiologie und Strafrechtsreform"). In 1937, he became deputy vice-president of the "Criminal Biology Society", an interdisciplinary collaboration between academic criminology, those investigating the pseudo-science of "criminal biology" and "the [government] authorities".

Works Overview Franz Exner's contributions to Crime science stand in the tradition of his two academic criminal law teachers, the "modern" or "sociological" school represented, above all, by Franz von Liszt and the Swiss Criminal law professor, Carl Stooss. Exner built on and progressed the ideas of both these mentors. After completing his Habilitation in 1910 at Vienna, with a dissertation on "The essence of negligence" ("das Wesen der Fahrlässigkeit "), for which he was supervised by Stooss, he dedicated himself primarily to themes involving Criminal Policy and Criminology. In this respect, Exner anticipated the twenty-first century approach to criminal law (in Germany) which is based on a very clear distinction between "penalties" and "measures" (termed by Exner as "security measures" / "Sicherungsmittel"). and on the micro level, created by personality traits of the individual perpetrator(s). The criminal act was, therefore, a result derived in a complex manner from a combination of opportunity, inherent predisposition and environmental factors. What derived from inherent predisposition on the part of an individual was on the one had a function of the contextual environment in which the individual exists and on the other hand a situationally defined course of action, which in turn was influenced significantly by those broader contextual factors. There is also a clear evolution in his thinking over time: during the republic years there is an emphasis on prioritizing social causes of criminal behaviour including, notably, the impact of wartime experiences on individuals. Later those "inherent predisposition" elements were very much more to the fore, though he never completely excluded the impact of "social factors".

Exner as criminal-sociologist During the Weimar years Exner emerged as a leading representative of the new academic discipline of Criminal Sociology in the German-speaking world. That was followed in 1926 by his lengthy treatise "Krieg und Kriminalität in Österreich" as well as critical studies on the preventive effects of the death penalty, published by "Monatsschrift" in 1929 in an influential article headed "Mord und Todesstrafe in Sachsen". His 1931 work, "Studien über die Strafzumessungspraxis der deutschen Gerichte" summarized the results of related empirical judicial research. It was an approach that corresponded with the paradigm of an aetiological (causal) approach to criminology. Although the concept was not wholly novel internationally, Franz Exner was the first academic criminologist in the German-speaking world to define Criminology purely in terms of the social causes of crime. Nor did the idea of Criminal Sociology as a value-free discipline among more contemporary scholars of the subject. Wilhelm Sauer, a near contemporary who, like Exner, combined a full legal background with a career as an academic criminologist, always saw it as the mission of the Criminal Sociologist to add a layer of "ethicalisation" to the criminal justice apparatus. Criminal Sociology, for Sauer, existed "not to support but to oppose the criminal": this placed him unambiguously in opposition to the idea of Criminal Sociology as a value-free academic discipline.

Exner then distanced himself further from von Liszt when it came to criminal sociology in the broader sense. Exner attributed the difference between the legislative and judicial approaches to the fact that judges, unlike legislatures, believed themselves called upon to incorporate, in their sentencing approaches, a moralistic focus based on the ethics of "everyday life". Referencing a verdict attributed to Max Weber, Exner concluded that judicial action in this respect was essentially "tradition-based, and not based on reason". At that time he had concluded that society's evaluation and the state's evaluation of some classes of crime - especially, but not exclusively, those involving political delinquency and negligence - differed very substantially. Unlike the state, society tended to prefer a moralistic and retaliatory approach to justice in these instances. Society is far more concerned with the details of the planning and arrangements of the criminal act(s) alleged - covering matters concerning which the state can in most instances afford to be indifferent - sometimes to the point at which society can be persuaded to take a more "indulgent" view than the state. Most of the Nazi law professors, such as Hans Welzel, Karl Larenz and Georg Dahm, rejected Neo-Kantianism, insisting that "the essence of the German peoples' community" (corresponding to the Neo-Kantian "is") and its "order" (corresponding to the "ought") had come together. A separation between "is" and "ought" was, according to this interpretation, an "un-German" and thereby "artificial" construct, which should on that basis be rejected.

In terms of his "philosophy of justice", Exner's approach was essentially utilitarian. One of his core contentions was that, at least in the long term, justice and expediency will tend to coincide. But he introduced an important time-based qualification. Things that contemporaries might consider "just" might have been considered "mere expediency" in the past. In such instances, today's "justice" becomes yesterday's "expediency". Where criminal justice fell back on moral precepts, the impetus for the approach should never rest on simple moral grounds, but should be firmly based on "considerations of expediency". A criminal justice that simply ignored the moral views of society could not, by definition, be adequately "expedient", because such an approach would fail the necessary test of social acceptability. In this sense, as early as 1914, Exner was setting out unambiguously the need for a simple broadly-applied preventative strategy, rejecting any connection between punishment and retribution.

Under National Socialism After 1933, Exner tended to move away from criminal-sociological theses and towards criminal-anthropological (race-based) theses. His arguments during the Hitler years never entirely ignored the sociological aspects of criminology, however. He still presented the phenomenon of criminality as resulting both from inherent and contextual factors. Furthermore he insisted that even where an "inherently criminal predisposition" ("anlagebedingten ...") to commit crime was identified, that was in itself also contextually defined to the extent that it resulted from the impact of external factors on members of previous generations. It is interesting to note that Exner's book "Kriminalbiologie" was reviewed in the specialist journal "Kriminalbiologie in der Zeitschrift für die gesamte Strafrechtswissenschaft" not in the "Criminal Biology" section but in the Criminal Sociology section. With respect to his attitude on specific aspects of National Socialist criminal policy, secondary literature of the period cites Exner judiciously. He remained critical of unqualified references to the "healthy gut feeling of the people" ("gesunde Volksempfinden"), preferring to see the concept applied, if at all, only where empirically supported. He continued to advocate a rational basis for criminal policy and was critical of purely "emotional" and thereby irrational direction of the party criminal policy endorsed by Dahm, Schaffstein and the politician-judge Roland Freisler.

He nevertheless increasingly relegated criminal sociological arguments below "racist" ones that ascribed criminal acts to genetically derived "criminal-anthropological" causes. This clearly contradicted his work in the 1920s which had given primacy to environmental factors and contextual changes as the primary causes of criminality. In his 1938 essay "Volkscharakter und Verbrechen ", he attributed what he called "Negerkriminalität" not to social factors but to "racial causes", dismissing the option of interpreting the phenomenon in terms of social environment as an "insufficient explanation". The corresponding chapter in his principal work on "Criminal Biology", the first edition of which appeared in 1939, though slightly more carefully differentiated, rehearses what are essentially the same arguments.

Criminology textbook: "Basics of Criminal Biology" Exner's textbook on "Criminal Biology" was first published in 1939. According to Richard Wetzell and Karl Peters it was the most important German language criminological textbook since Gustav Aschaffenburg's "Das Verbrechen und seine Bekämpfung", of which the most recent (and third) edition had appeared back in 1923. From a twenty-first century perspective, many view "Criminal Biology" as something of a "pseudoscience". Exner's textbook summarized the state of criminology research at the time and was divided into five sections: (1) "Inherent and environmental [causes of criminality]", (2) "The crime in the life of the people's society", (3) "The Perpetrator", (4) "The deed" and (5) "Applied criminal-biology". There was also an introductory chapter in which Exner affirmed - not for the first time in print - the independence of Criminology from Criminal Justice as two separate academic disciplines. He also acknowledged a core problem of Criminology which continues to trouble scholars: the difficulties arising for Criminology, when viewed as an academic discipline, that arise from constant changes in the definition of "crime". The example he singled out involved homosexuality, under certain justice systems treated as a matter for the individual but treated as a crime under other jurisdictions. Having highlighted the problems of the shifting definition, he went on to insist that the problems were soluble because it remained possible to distil a largely immutable core definition, while separating off for discrete evaluation any shifting outer elements of interest. The title was also misleading in terms of the book's contents and conclusions, since Exner at no point equates "criminal biology" with "criminal anthropology", regarded by most criminologists as a more reputable academic discipline. For readers able to progress beyond the title, it was quickly evident that Exner was using the term "criminal biology" very broadly, including in it the whole spectrum of criminal sociological, criminal anthropological and criminal psychological research, thereby embracing the entirety of the discipline that has subsequently become widely known as Criminology. The 1949 edition also still described the Yenish people as "wandering good-for-nothings and vagabonds" whose "antisocial actions - even where perpetrators are of mixed blood (mixed racial provenance) - is not to be denied". However, the racist passages in the 1949 edition only occupied a small part of the overall work. In addition, the chapters that dealt with the "inherent criminal disposition" ("Anlage") of perpetrators dealt primarily with discussion of individuals' inherited characteristics in which the concept of "race" played no part. The other was his colleague Edmund Mezger at the Ludwig-Maximilians-Universität München. The purpose of the new law was to provide legal cover for the "transfer to the SS" of various classes of citizen deemed by the authorities to be non-German. Given that the government actions provided for were already being implemented, it was a piece of retrospective legislation. "Transfer to the SS" was a widely understood euphemism for placement in one of the country's concentration camps. Those whose detention was provided for were Jews, Roma, Sinti, Russians, Ukrainians, Poles and those "non-Jewish Germans" who had been sentenced to jail terms in excess of eight years. The legislation had been under discussion within government circles for some years, and a detailed proposal had been drafted by officials in the Interior Ministry under the direction of Reichsführer Heinrich Himmler as far back as 1939; The law itself was intended to come into force on 30 January 1945, following the "final victory" for which the government were preparing. - maintained a critical and distanced position to the entire project His exchange of letters with the Ministry lawyer shows that he was "diligent in terms of the language, but critical of the matter", expressing doubts over the unlawyerly imprecision and conceptual vagueness of the government proposals that provided the starting point for the legislation.

Despite his criticisms of the formulation of the draft legislation, it is apparent that Otto Rietzsch, the ministry lawyer responsible for the "Community Foreigners Act" was happy with Exner's work on it. Exner and Mezger were both seen to have suggested valuable improvements to the draft law that the Justice Minister had previously approved. Accordingly, in a letter dated 24 May 1943, Rietzsch approved two payments, each of to each of the two men, in order to cover their expenses incurred by virtue of the work they had contributed. In the same letter Rietsch described Mezger and Exner as "currently our best experts on Criminal Biology".

Criticism Exner's role under National Socialism has been evaluated in strikingly disparate ways. In the 1980s, when serious discussion began concerning Criminology and the roles of individual criminologists under National Socialism, the accusation was criticised for having misleadingly entitled the 1939 and 1944 editions of his book on "Criminal Biology" (renamed in the 1949 "Criminology") in order to accommodate the political climate, and in the process conflate Crominology with the pseudoscience of Criminal Biology to satisfy the perceived needs of the criminal justice system. In this context Exner was also accused of having set aside academic self-criticism when preparing, before he died, for the 1949 edition, in which the adjustments for the post-fascist era were confined to the simple omission of the overtly racist passages about the "criminality of the Jews".

Ina Pfennig is an Exner critic. Given the background socio-political demands of other participants in the "discipline" of "criminal biology", it is certainly possible to see Exner as a relatively harmless figure. He did attempt to hang on to the connection between upbringing, environment and personal disposition. His academic work nevertheless displayed a disturbing progression from his earlier focus on criminal justice and criminal-sociology to his later "régime-compliant" statements on "criminal biology". The direct uses and abuses of criminological theories by Hitler's Germany can not and must not remain concealed. Baumann is particularly critical of what he sees as Exner's membership of the "criminal biology society", which in its turn aspired to closer collaboration with the "criminal science mainstream" which, from the perspective of government authorities, Exner represented.