Prisoners' Rights

Historical Outline: Formation of Human Rights

Even though law historians have able to locate the roots of a penitentiary law in ancient and medieval times, it was not until the 20th century that the legal status of a prisoner as a subject of rights and limitations was commonly acknowledged. The main difference between the ages can be found in the philosophy of punishment itself. Until the Age of Enlightenment, the criminal doctrine mainly emphasized “negative general crime prevention”—restraining prospective criminals from committing the crime by showing the inevitability of the punishment—as a fundamental rationale of the criminal law. For this purpose, the catalogue of penalties consisted mainly of corporal punishments such as mutilation (loss of a bodily member), blinding, and a broad array of ingenious ways of carrying out the death penalty. Sentences were often executed in public in order to display the inevitable fate of criminals. This meaning of prevention has excluded the isolation penalty from the scope of the word punishment as such. Although primitive jails existed, the time spent in a facility itself was not considered a penalty—the only role of imprisonment was to make it impossible for an offender to escape before pronouncing or executing a sentence. In these conditions, establishment of any consideration for prisoners’ legal subjectivity or statutes governing imprisonment would be meaningless.

It was not until the 16th century that the first “modern” penal code was developed. Although the “Constitutio Criminalis Carolina,” by the Holy Roman emperor, Charles V, still applied a wide array of death penalties for offenses, it recognized imprisonment as a form of punishment. The modern prison system was forming in accordance with the newly conceived philosophical ideas of the Age of Enlightenment, which brought a wave of humanitarian tendencies into the criminal law; they propagated the necessity of codifying penal law and perceived the deprivation of freedom not only as a means to the punishment, but also as a punishment itself.

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