1985 - Ferrajoli - Marxism and criminal question

Marxism and the Criminal Question Luigi Ferrajoli; Danilo Zolo Law and Philosophy, Vol. 4, No. 1. (Apr., 1985), pp. 71-99. Stable URL: http://links.jstor.org/sici?sici=0167-5249%28198504%294%3A1%3C71%3AMATCQ%3E2.0.CO%3B2-I Law and Philosophy is currently published by Springer.

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LUIGI F E R R A J O L I AND D A N I L O Z O L O

MARXISM A N D THE CRIMINAL QUESTION*

ABSTRACT. The question considered is whether it is possible to trace a theoretical strategy for a criminal policy on the basis of Marx's work. The answer offered is that Marxian political and economic analysis does not supply any "general theory" of criminality and that any attempt to formulate such a theory (as in Lenin, Pagukanis or Gramsci) necessarily leads t o authoritarian and regressive conceptions of crime and punishment. Nevertheless the authors maintain that it is possible to trace three theoretical suggestions within Marxian thought which allow of a fruitful approach to the criminal question. The fust suggestion relates to the economic roots of many aspects of modern criminality; the second regards the Christian and bourgeois "superstition" of moral liberty and individual culpability; the third suggestion deals with the lack of a guaranteed "social space" as the prime root of crime. These theoretical suggestions permit clarification of the social character of penal responsibility and this character points t o the need for the socialization (but not deregulation) of criminal treatment.

There are two problematic areas which we wish to consider and which should be kept distinct. The first is contained in the following question. Is it possible to locate in Marx's own work and in later Marxist tradition elements of a "materialist theory9' of deviancy and social control which can explain these phenomena as they appear in advanced industrial societies? The second area can be defined in accordance with a second question. Is it possible, and if so, on what basis, to trace a theoretical strategy for a criminal policy in the context of a socialist perspective?

* This essay grew out of a reply t o a questionnaire drawn up by La questione criminale, an Italian review which tries t o approach the criminal question from a Marxist standpoint. Law and Philosophy 4 (1985) 71-99. 0167-5249185.10.

O 1985 by D. Reidel Publishing Company.

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Before answering these questions, we want to state the following. It is our opinion that the Marxian analyses of bourgeois society provide some theoretical elements necessary for an understanding of modern criminality and of current institutional processes of criminalization. We would contend, however, that, though indispensable to an explanation of criminality which does not view crime as a natural or moral phenomenon, these elements do not suffice for a "global" construction of the kind of theory of deviancy upheld by certain Marxist criminologists according to the classical theses of E. B. Pa~ukanisl. A general theory of criminality demands, in fact, in our view, that what can be drawn from Marxian analysis should be integrated with those theories capable of empirically explaining the whole network of "superstructural" factors which play a part in the criminalizing process. Besides, the elaboration of such a theory requires a more general doctrine of social control in relation to the state and the law, which cannot be drawn from the heritage of Marxism, even in its more recent theoretical-political elaborations 2 . It is first from this standpoint that we want to oppose as unfruitful the attempt to construct a "materialist theoryv of criminality which is anchored to the classic Marxist texts and which is held up as a global alternative to the theoretical positions

For E. B. Paliukanis's philosophy of law see: J. N Hazard (ed), Soviet Legal ~ h i l o s o p h y(Cambridge: , Harvard University Press, 1951). For a criticism of the soviet legal philosophy see the classic essay: H. Kelsen, The Communist 'Ill;eory o f ~ a w (New , York: F . A. Praeger, Inc., 1955); see in addition: R Schlesinger, Soviet Legal Theory, (London 1951). For a general Marxist viewpoint see: G. Rusche and 0. Kirchheimer, Punkhment and Social Structure, New York 1968; D. Melossi and M. Pavarini, E, The Prkon and the Factory o on don: Macmillan, 1981). 2 Concerning the lack of the development of a Marxist ~oliticaltheory see for example R. Miliband, 'Poulantzas and the Capitalist State', New Left Review, November 1973; C. Offe, Strukturprobleme des kapitalistischen Staates, Frankfurt a.M.: Suhrkamp, 1972; N. Bobbio, Quale socialismo?, Torino: Einaudi, 1976.

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developed by the new critical criminology3. Second, we want to refute the relevance and scientific value of those elements of political philosophy present in Engels and Lenin but not in Marx, which have been set up as a Marxist-Leninist doctrine of the state; a doctrine which is essentially reduced to a definition of the state as a repressive class apparatus and which is theoretically linked to the notion that the state will wither away in communist society, though during the transitional phase its former bourgeois form will be replaced by the "socialist" form of the dictatorship of the proletariat. An attempt to formulate a criminological theory, or even worse, a criminal policy, on the basis of these premises will inevitably lead to two dangers (this is quite apart from the scholastic nature of such an approach): (1)a mechanistic assumption as to the relation between "mode of production" and crime resulting in a reduction of the wide and complex themes of the cultural motivations of criminality and of the political reasons for penal repression (criminological economism); (2) the adoption of a stance based on the notion of integration and social consensus (criminological holism). This latter perspective sees socialist society as being nonconflictual because it corresponds to a unifying and homogenizing project of society, made possible by the overthrow of capitalistic structures. This leads to a basic hypothesis as to the ultimate extinction of penal law thanks to a process which gradually renders control and repression "superfluous". The two dangers largely present (unfortunately the second has been tried out) in the Marxist tradition are equally serious. At the base of both stands the dogmatic assumption that Marxism of itself is a complete "philosophy" or science", which can dismlss the empirical social sciences of non-Marxist tradition, and ignore any practical importance in the "guarantees" of private liberties provided by modern law. We would like to deal with these

See I. Taylor, P. Walton and J. Young (ed), Critical Criminology, London

1975; Id., The New Criminology. For a Social Theory of Deviance, (London and Boston, 1973).

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dangers before going on to the issues raised earlier since we feel that if they are not averted there is a risk that this could lead to a criminal theory of an authoritarian and regressive type.

The first theoretical danger (economic reductionism) seems t o be particularly present in those Marxist interpretations, first of all in that of E. B. Pa~ukanis4,which strictly correlate criminality and penal repression with the mercantile nature of the capitalistic mode of production and distribution. This interpretation is based on a mixture of the Marxian notion of alienation of wage-labour within capitalist production and with the Hegelian-Lukicsian theory of the world of production and of commodities as the sphere of the objectification or alienation of the individual. Here we have the adoption of a Hegelian-Marxist doctrine of alienation and fetishism (with its related philosophical speculations on the "personification" of things and the "reification" of persons on the exchange market) which forms the basis of an irremediably utopian theory: the elimination of social antagonism, the dissolution of classes and penal repression thanks to the suppression of Particularly regressive and naive seems to us the idea proposed by E. B. Pagukanis, to the effect that the proportion between punishment and crime corresponds to the capitalist mode of exchange between "equivalents".. It is in fact well-known - and admitted by PaSukanis himself when he cites Aristotle and the jus talionis present in archaic penal law - that the criterion of commensuration between punishment and the extent of the offence is the general foundation of the ancient penal system, from Jewish laws to the XI1 Tables. The innovations introduced by bourgeois penal law are rather: first, the principle of precise determination of the measure of punishment; secondly, the general principle of strict legality of crimes and punishments. In our opinion these principles must be considered progressive achievements of modern law, which, according to PaIukanis, should be suppressed, together with the proportionality of the punishment, on the grounds of the need for a more effective defence of society and the correctional function of penal law. See E. B. PaSukanis, 'The General Theory of Law and Marxism', in Soviet Legal Philosophy, cit., pp. 206-8.

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the "commodity form" and hence the complete abolition of the market and money exchange. clearly the necessary prerequisites for this are the cessation of any possible commensuration between production and consumption and the structural surplus of any kind of goods and services with regard to demand. Such economicsocial conditions are outside the realm of any scientific determination or prediction. Nor are attempts to apply those analytical categories belonging to a Marxian critique of bourgeois economy to both "superstructural" and "structural" factors in criminalizing processes any more successful. In this case, any criminal act or penal repression could be interpreted as a political manifestation of the class struggle within the context of a theory mechanically extended from the realm of a "structural" analysis to the psychological and sociological realm of the subjective motivation of deviant behaviour and the institutional-political forms of social controls. Perhaps this could be granted some level of plausibility if it were possible today to interpret crime as the ideological rejection or political insubordination of the lower classes who act against the social norms of the ruling class. This is certainly what happened during the phase of primitive accumulation, particularly in England. In this phase, the prison institutes and more generally repressive measures neatly corresponded to class designs to "re-educate'' the delinquent to the needs of factory discipline. Suffice it to recall Jeremy Bentham's Panopticon6. Here, the cellular prison is theorized and concretized as an architectural experiment which incarnates the emblematic form of bourgeois schemes for the management of the lower classes: the constraint to work imposed by an automatic disciplinary mechanism, the learning of rules by rote, the use of isolation for re-education in private property values, total control, subjection to an impersonal, all-seeing power. In this case the assimilation of prison into factory and vice versa, as total disciplinary Ibid., pp. 205-25. See J. Bentham, Principles of Penal Law, in Id., The Works, ed. by J. Bowring (repr.), New York 1862, vol. I; Id., Panopticon, ibid., vol. IV.

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institutions capable of maximizing the exercise of class hegemony and the internalization of bourgeois rules, was an express and explicit design7. But what was true of early capitalism is much less true of advanced capitalism. Nobody can state today that the working class is the exclusive or even the main victim of repression in penal institutions. If we assume that the Italian situation is a relevant example of contemporary European neocapitdism, we can maintain that nowadays the hardest hit are those economical and cultural sections of society which have more or less directly suffered the loss of social identity: immigrants, the Lumpenproletariat on the city outskirts, poor southern peasants, underemployed workers in the service industriesa. From a crirninological viewpoint, very few of these people can be likened to the proletariat. They seem to be particularly concerned with "innovatory delinquencyW9,i.e. behaviour which is not directed against dominant social models - as was the case with the "rebellious" proletariat of the capitalist societies of the 19th century - but

'

See M. Foucault, Surveiller e t punir, (Paris: Gallimard, 1975); P. Costa, d progetto giuridico, Milano: Giuffrk 1974. See for example the high percentage of illiterates and semi-illiterates among the Italian prisoners in 1973. Out of 71,763 prisoners only 687 had a university degree and only 13,106 a high school degree; the rest were illiterate (14,573) or semi-illiterate (43,397) (ISTAT,Annuario di~tatistiche~iuditiarie. 1974, Roma 1976, p. 325). In 1973, out of 88,400 people condemned t o prison, only 15,664 were dependent industrial workers and only 3,010 were farmworkers (ibid., pp. 270-2); this amounts to a percentage of 21.12% of the total of condemned persons, which corresponds t o the percentage (21.62%) of workers and farmworkers within the Italian population, not counting minors (under 14) and pensioners (ISTAT, Annuario statistic0 italiano. 1976, Roma 1976, pp. 25, 27, 16-7, 32). Particularly remarkable are the figures concerning the emigrant population. In 1973, out of 71,763 persons who entered prison, the number of people condemned for a crime committed in a region other than that in which they were born, amounted to 25,355. See R. K. Merton, Social Theory and Social Structure, Glencoe (Ill): The Free Press, 1951.

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against the institutional rules and instruments established for individual adjustment to those models. Besides, detentive punishment in the form of direct repression and physical constraint appears to be losing its original capitalist function. On the one hand, as is clearly shown by the more progressive social-democratic Scandinavian initiatives, the brutal character of detentive punishment is diminishing. On the other hand imprisonment today has become something which is reserved for a small number of deviants. In Italy, for instance, as it is possible to discern from official statistics, the prison population has halved in the last forty years and is about one third less than last century's numberslo; this shift is even greater if one takes into consideration the population growthll. Added to this, the majority of those detained comprises persons awaiting trial, while those serving time have been reduced to a few thousandsl2. By contrast, during the course of this century, the number of prosecutions has increased considerably13. Actually we are witnessing a

l o The average number of prisoners was 71,618 in the period 1871-1880, 55,327 in the period 1920-1930, 50,741 in the period 1930-1940,35,215 in the period 1950-1960, 28,521 in the period 1960-1970,25,737 over the years 1971-1975 (ISTAT, Sommario di statistiche storiche delllItalia. 1861-1975, Roma 1976). Even more remarkable has been, over the last fifty years, the reduction in the number of prisoners within the reformatories: from an average of 6,259 persons in the period 1930-1940 to an average of 858 persons in 1975 (ibid., p. 7 6 ) . With reference to the whole of the Italian population, the number of prisoners has halved over the last 25 years, is a third of the total average for the last 50 years and is less than one fifth of what it was in the last decades of the nineteenth century (ibid., pp. 7 1 , 16). l 2 At the end of 1975, out of 27,945 prisoners 16,537 (about the 60%) were awaiting trial (ISTAT, Annuario statistic0 italiano. 1976, Roma 1976). l 3 Official statistics d o not provide any homogeneous data concerning the number of people charged or people tried: available data up to 1960. However until this date it is possible to ascertain a progressive growth in the number of people tried: from an annual average of 489,824 in the period 1871-1880 to 782,450 in the period 1911-1920, to 1,107,859 in the period 1931-1940, to 1,360,185 in the period 1951-1955 and to 1,546,820 in

"

Luigi Ferrajoli and Danilo Zolo singular phenomenon: confinement as a form of punishment is becoming an exceptional form of defence and social control, but at the same time, it is possible to note an extension of the sphere of penal intervention in society. Thus we have a strengthened penal apparatus and yet a weakening of its punitive-repressive function. The penal system, then, is shaping into an ideological apparatus. Its function is, rather than that of direct repression, the celebration of values of legality and the pronouncement of verdicts of guilt which have no effect, in the majority of cases, other than the social stigmatization of the accused through appearance in court conviction and registration in the criminal records office. Here we are dealing with a kind of "formalization" of criminal justice. In the span of two centuries in which we have seen a change from discretionary punishments of a corporal nature t o fixed punishments of a detentive nature, criminal justice is emerging today as a classificatory machine which produces prosecutions, criminal records certificates and social juridical status (ex-convict, recidivist, common criminal, dangerous person, etc.). All this clearly does not mean that the prison institutions do not or will not continue to have a general function within neocapitalist societies as well. It simply means that from the neocapitalist viewpoint, mechanisms of preventive integration, the production of consensus and the classification of non-conformists and deviants are more important than instruments of prison repression. What is more important than the entire archaic penalistic prison structure, is the ideologically stigmatizing use of criminal prosecution, the courtroom and convictions with very light penalties or none at all, criminal record files, police computerized archives, spy techniques used by new social control agencies, the kind of centralization of rulings on legal interpretations which, for 1959. Even greater is the increase in the number of people charged: from an average of 249,269 in the period 1871-1880 t o 1,415,422 in the period 1951-1955, to 1,633,758 in 1959 (ISTAT, Sommario di statistiche storiche italiane. 1861-1955, Roma 1960, p. 94; ISTAT, Annuario di statistiche giudiziarie. 1959, Roma 1960, p. 100).

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instance in Italy, the Corte di Cassazione has been compiling in recent years, and finally police files on persons who have been charged but not convictedl4. This whole network for the stigmatization of deviants appears to be forming into a differentiated system of social control which is more efficient than the traditional forms of detention. Prison appears to be confined to a generic legitimating role with no other effect than the archaic and elementary function in which violent repression of the crime is a symbolic deterrent necessary for the maintenance of order. Particularly in Italy and in other "Catholic" countries prisons, together with other systems of detention like the criminal lunatic asylums and the institutions for the control of minors, have always been outstanding examples of backwardness with a minimal ideological value. These institutions are no more than places in which depersonalization and the professionalization of delinquent careers take place. These institutions are hierarchical, tough, repressive and, at the same time, morally lax and ideologically indifferent. While in Protestant countries the "Philadelphian" cellular prison performed a specific re-educative function for capitalism through the "values" of the Christian bourgeois ethic (Calvinist, Quaker, Methodist, etc.), in Italy the "re-educative" aspect has been more or less absent. Of the three classic principles of "social rehabilitation" of the -prisoner - instruction, labour, religion - the first has long since remained on paper and where practised today, is done so in a bureaucratic, inefficient manner15 ; the second has only been realized in very limited terms and l4 See Consiglio Superiore della Magistratura, L'adeguamento dell'ordinamento giudtiario ai principi constituzionali e a2k esigenze dellasocietci, Roma 1976, Allegato B, pp. 541-71. l 5 G. Neppi Modona cites a ministerial instruction of 12.2.1932 which states that teachers of prisoners have no right to be paid for their work. Only recently, in 1958, has a register for teachers of prisoners been provided. See G. Neppi Modona, 'Carcere e societh civile', in Ston'a d'ltalia, V, 2, Torino 1973, pp. 1906-1998. P. G. Valeriani openly speaks of sabotage against any effective didactic experience within the prisons. See P.G. Valeriani, Scuola e lotta in carcere, Bari 1972.

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remains a "privilege" for a minority of inmatesl6; and the third is based on the Chaplain's intervention which is either paternalistic, persuasive or even based on his complicity with the practices which humiliate individual inmatesl7.

The second theoretical danger present in the Marxist tradition which we have called "criminological holism" is a corollary of the first. Once it is assumed that the cause of modern crime lies in structural or class contradictions just like any other tension or social dysfunction, then it is also assumed that any conflict or tension, including, therefore, criminal deviancy, will cease to exist in the future socialist society. This is a Leninist conception of a communist society as consensual and pacifist, where juridical and institutional control is replaced by social self-discipline and the spontaneous conformance of all citizens to the new dominant models. Freed from capitalist slavery, from the untold horrors, savagery, absurdities and infamies of capitalist exploitation people will gradually become accustomed t o observing the elementary rules of social intercourse that have been

l 6 Extensive literature is available on the subject of the permanent lack of job opportunities within Italian prisons and on the private and public tendency t o underpay and t o exploit the work of prisoners. See for example G. Neppi Modona, 'Carcere e societi civile', cit., pp. 1915, 1973, 1995. " From an interview with don Luigi Fanciano, Catholic Chaplain of Lecce prison (in La ~ e ~ u b b l i c9.21.1976): a, "Do prisoners love the prison director? Yes, they do. He is even-tempered with them and he always respects prison regulations. And how do they behave with y o u ? It depends ... Political prisoners snub me, they maintain I am an exponent of the ruling class. The rest only ask me for favors, a telephone call, an errand. Unfortunately they are people who d o not understand the high sense of God's justice, they only speak about human justice. But somebody says that prisoners are often struck, they are ill, they are full o f lice ... They are never struck without reason. If they are full of lice, it is only their fault. Thus it is a lie that prison agents are slave-drivers. This is simply slander. I have not seen anybody with a black eye recently".

Marxism and Criminality known for centuries and repeated for thousands of years in all copy book maxims. They will become accustomed to observing them without force, without coercion, without subordination, without the special apparatus for coercion called the State.18

In this perfect communist society "individual excesses" will in the long run disappear; since we know that the fundamental social cause of the excesses, which consist in violating the rules of social life, is the exploitation of the masses, their want and their poverty. With the removal of this chief case, excesses will inevitably begin to "wither away". We do not know how quickly and in what order, but we know that they will wither away. With their withering away, the state will also wither awaylg .

Certainly "until the 'higher phase' of communism arrives ... the strictest control by society and by the state of the amount of labour and the amount of consumption"20 will be necessary. But it will be a question of control "carried out not by a State of bureaucrats, but by a State of armed workers", a control which presupposes "the conversion of all citizens into workers and employees of one huge 'syndicate"'21 and "the 'training and disciplining' of millions of w o r k e r ~ " 2 ~This . disciplining, being exercised by the majority of people, "will really become universal, general, national and there will be no way of getting away from it, there will be 'nowhere to go'. The whole of society will have become a single office and a single factory with equality of work and equality of pay"23. For when all have learned the art of administration and will indeed independently administer

social production, will independently keep accounts, control the idlers, the

l 8 See -V. I. Lenin, Selected Works, vol. 111, New York: International Pub-

lishers, 1943, p. 81.

'9 Ibid., p. 83.

2 0 Ibid., p. 89.

2 1 Ibid.,

2 2 Ibid., p. 92.

2 3 Ibid., p. 93.

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82

gentlefolk, the swindlers and similar guardians of capitalist tradition, the escape from this national accounting and control will inevitably become so increasinly difficult, such a rare exception, and will probably be accompanied by such swift and severe punishment, that very soon the necessity of observing the simple, fundamental rules of human intercourse will become a habitz4.

The advent of the communist society, that is, the disappearance on the one hand of the State and of the law as superfluous, and on the other hand of deviance and conflict as impossible, will be the result of a process of ethical homogenization of the social body and of the socialization of repression which it will be the task of the dictatorship of the proletariat to carry out. All this is a radical revision of the Marxian conception of revolution and communism. Gramsci was further to develop this conception in his Quaderni del carcere. Here the transition to socialism is seen as a transition t o a "regulated" society rendered perfectly homogeneous by the gadual absorption by all citizens of socialist values and norms. In that he introduces the concept of "hegemony", rather than correcting the organicist and totalizing character of the Leninist conception of the dictatorship of the proletariat, Gramsci appears to want to develop those ethical and "superstructural" aspects belonging t o a Jacobean conception of socialist power. Gramsci's "modern Prince" is the political party which is the "proclaimer and organizer of an intellectual and moral reform" and which "as it develops, revolutionizes the whole system of intellectual and moral relations, in that its development means precisely that any given act is seen as useful or harmful, as virtuous or wicked,-only insofar as it has as a point of reference the modern Prince itself and helps to strengthen its power or t o oppose it"25. In this sense the modern Prince is destined to take the place, "in men's conscience, of the divinity or of the categorical imperative-26. Besides l4 25

Ibid., p p 93-4.

See A. Gramsci, Prison Notebooks, London: Lawrence and Wishart, 1971,

p. 133.

26 Ibid.

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the exercise of a directly repressive form of power, this calls for a class-party capable of organizing a mass consensus around itself until it can accomplish a "regulated society" or " ethical state"27. More explicitly than Lenin (and in terms in which it would be difficult to get much further away from Marx and Rosa Luxemburg), Gramsci moves along the lines of an ethical-pedagogic conception of law which one can perhaps only find in Fichtian state pedagogism. Not only does Gramsci end up by giving weight to the repressive function of socialist criminal law, but he actually attributes a specific ethical and "civilizing" function to the state penal apparatus. For Gramsci the educative and formative role of the state ... is always that of creating new and higher types of civilization; of adapting the 'civilization' and the morality of the broadest popular masses to the necessities of the continuous development of the economic apparatus of production; hence of evolving even physically new types of humanity2*

This function finds in law "an instrument which is maximally effective and productive of positive results"29. A state understood thus is a state which "punishes", which is not confined to the "struggles against social 'dangerousness'", but which must be seen as " 'educator' inasmuch as it tends precisely to create a new type or level of civilization"30. In the field of crime too, for Grarnsci the state is an instrument of 'rationalization', of 'acceleration', and of 'Taylorization'. It operates according to a plan, urges, incites, solicits, and 'punishes', for, once the conditions are created in which a certain way of life is 'possible', then the 'criminal action or omission' must have a punitive sanction, with moral implications and not merely be judged as 'dangerous'. The Law is the repressive and negative aspect of the entire positive, civilizing activity undertaken by the state31. [And] the 'prize-giving' activities of individuals and groups 27

29 30 31

Ibid., pp. 257, 258. Ibid., p. 242. Ibid., p. 246. Ibid., p. 247. Ibid.

Luigi Ferrajoli and Danilo Zolo etc., must also be incorporated in the conception of the Law; praiseworthy and meritorious activity is rewarded, just as criminal actions are punished32.

Even when it rejects the Stalinist perversion of Leninism, a criminal policy inspired by this theory of transition to socialism cannot but be based upon a general theory of deviancy conceived as 'social pathology'. In the face of plans by the hegemonizing class-party to make a perfectly homogeneous and consensual society, there is the risk that any form of dissent and deviancy will be seen as a profoundly negative factor, as an irrational and immoral denial of an absolute social good. And even in the best of cases, repression would assume the paternalistic and pedagogic (theological) value which it generally has in authoritarian regimes from medieval theocracy to modern totalitarianism. Together with the political compulsion to conform to legal norms, the nonconformist is also obliged to be morally persuaded and cooperate with his repressors. This kind of justice would end up by favouring theological-penal instruments like confession and self-accusation: it would be a form of justice bent on promoting in the deviants subjects projects of self-reform, expiation and inner adherence to the status quo.

Though, as we hold, it would be fruitless to attempt a comprehensive theory of deviance and social control based on a re-exarnination of classic Marxist texts, it is possible to trace three theoretical suggestions within Marxian thought which allow of a fruitful approach to the criminal question. In our view, without such suggestions, it is impossible to understand modern criminality in some aspects of its historic specificity and, similarly, it would be impossible to formulate an alternative criminal policy to that practised today by both Eastern and Western industrial societies and distinct from the integrationalist and authoritarian suggestions contained in the Marxist tradition.

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The first suggestion relates to the structural roots of modern zriminality. According to the Marxian analysis of bourgeois economy, the specific feature of the capitalist system of production is that the workers' means of subsistence depend on the exchange of labour power for capital. Because the exchange of labour power is subject to the laws of the capitalist market, the individual has no institutional guarantees as regards the employment of his labour power, save as qualified by modern trade unionism or the assistance of the Welfare State. On the contrary, as Marx has shown through the analyses of the use of the industrial reserve army, and as has been proved in practice in even the most advanced capitalist countries, unemployment is a structural and not a conjunctural factor in capitalist economy. Though the level of unemployment tends to vary in accordance with the amount of available capital and with technological change, it can never be completely eradicated. In brief, not only is capitalism unable to guarantee full employment, but its mechanism is such as to periodically throw out sections of workers from the productive system. Thus they will swell the ranks of the Lumpenproletariat33. This then helps to explain modern social marginality in relation to its "structural" roots in capitalism. In terms of its social formation, the Lumpenproletariat is like the proletariat; it was born with the capitalist organization of production, namely with the liberation of labour power from juridical bonds and with its subjection to market laws. At the same time, the Lumpenproletariat is constantly reproduced by a productive system which tends, from time to time, both to absorb and to displace from the labour market a fairly large number of workers. This Marxian analysis helps to explain that the "structural" basis of poverty in modern bourgeois societies is due to the atomization of society by market forces. In these societies, it is true, the individual is liberated from serfdom and becomes the owner of his labour power, but this is so precisely because he is left without any institutional protection. See K. Marx, Capital, (Chicago: Charles H. Kerr and Co., 1919), vol. I, pp. 689-711. 33

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It is clear from this that those criminal subcultures, and, more generally, "cultures of poverty" which develop among the modern marginal sectors of the population, do not represent indigenous cultural formations since they are induced by the processes of marginalization and social disintegration connected with the capitalist organization of production. In its turn, modern criminality (or rather "criminalized" or "treated" deviancy) to the extent to which it is a Lumpenproletariat and marginal phenomenon, is not a "natural" criminality but a criminality rooted in modern processes of social stratification. As such, criminality can only be understood in its present form within the context of the above noted Marxian analysis in terms of the precariousness to which workers are exposed. This theoretical model, in our view, is the main contribution made by the Marxian analysis of capitalist economy t o a modern theory of criminality. It represents a reference point which helps t o illuminate the structural bases and mechanisms of social stratification in modern industrial societies and the accompanying processes of the formation and development of subcultures. It accounts for the tension experienced by marginal sectors arising from the contrast between their social precariousness and dominant cultural models, and in general, for all those factors of social, political and cultural disintegration and subcultural aggregation, which have been the subject of modern critical criminology (functional theories, theories of subculture, etc.). In our view, however, it would be inappropriate to consider this theoretical framework as being exhaustive in relation to the whole of criminal phenomenology. First, we do not think that marginal, Lumpenproletariat criminality and modern criminality tout court are identical. Such an assumption represents an arbitrary simplification incapable of explaining important aspects of crime today. This would not only exclude white collar crime but also mafioso and fascist crime and the huge organized network of the international drug and arms market. Secondly, the Marxian perspective above outlined does not adequately explain certain specific "superstructural" characteristics of modern social marginality. The

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living conditions of modern marginal sectors, their politicalideological attitude, the variety and different levels of cohesion with relation to subcultures, their internal dynamics and their relation to the dominant culture, all constitute a complex and changeable reality which cannot be solely explained by a "structural" analysis. Here, the whole range of sociological, political, psychological, and cultural factors at the origin of criminal deviancy of a marginal and Lumpenproletariat kind cannot be overlooked. Marxian categories in relation to bourgeois economy (abstract labour, surplus value, profit rate, etc., or even proletariat, Lumpenproletariat, industrial reserve army) do not suffice. We need specific empirical research conducted on the basis of different theoretical categories and analytical instruments which can only come from cultural anthropology, the psychology of deviant and criminalizing behaviour and, more generally, from the sociology of criminal behaviour.

The second suggestion which we think emerges from a Marxian perspective, relates to one of the specific characteristics of modern processes of criminalization. This can be found in the critique, frequent in Marx's writings, of the Christian and bourgeois "superstition" of liberty and individual responsibility. This superstition is the base of the modern penal doctrine of culpability to the extent to which it is rooted in the notion of the consciousness and free will of the criminal34. Marx's most direct reference is to be

3 4 The moralistic approach to the criminal question is still predominant among the academic philosophers of penal law, from H. L. Hart to G. P. Fletcher, to H. Gross. See H. L. Hart, Punishment and Responsibility, (New York: Oxford University Press, 1968); G. P. Fletcher, Rethinking Criminal Law, (Toronto: Little, Brown & Co., 1978); H. Gross, A Theory of Criminal Justice, (New York: Oxford University Press, 1979). See in addition: M. D. Bayles, 'Character, Purpose, and Criminal Responsibility', Law and Philosophy 1 (1982), pp. 5-20.

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found in the passages in which he criticizes the image of the criminal as a "free and self-determining individual" and, by the same token, the theological conception of punishment as an instrument of anti-criminal therapy35. These two connected ideological postulates represent, we think, the basis of modern penal law, whose basic assumption is the culpability of the individual and, conversely, the suppression of the social dimension of the culpability. The result of this conception of criminality is t o place the burden of "guilt" and "responsibility" on the individual deviant in moral terms when it is all too often a result of social circumstances. The inspiration behind the whole system lies in that Christian juridical moralism which imputes p i l t to the conscious individual. The crime is always "sin" in a world of free will or individual liberty. ~ n v e r s e l ~"sin" , is nothing but crime, indeed it is only that which is the object of prosecution and even further of public sanction36.

See K. Marx, The Holy Family, in K . Marx and F. Engels, Collected Works, Moscow: Progress Publishers, 1475: "The idea underlying the punishment that Rudolph carried out in blinding the maitre d'kcole - the isolation 35

of the man and his soul from the outer world, the combination of legal punishment with theological torture - finds its ultimate expression in solitary confinement" (p. 186); "Profane punishment must at the same time be a means of Christian moral education. This penal theory, which links jurisprudence with theology, this 'revealed mystery of the mystery', is no other than the penal theory of the Catholic Church" (p. 178); "Cutting man off from the perceptible outer world, throwing him back into his abstract inner nature in order to correct him -blinding -is a necessary consequence of the Christian doctrine according t o which the consummation of this cutting off, the pure isolation of man in his spiritualistic 'ego', is good itself" (ibid.);"Punishment must make the criminal the 'judge' of his 'own' crime (...) convince him that violence from without, done to him by others, is violence which he had done to himself" (pp. 178-9); "Compared with this Christian cruelty, how humane is the ordinary penal theory that just chops a man's head off when it wants to destroy him" (p. 179). 3 6 Until the end of XVIII century penal trial were secret in the majority of European countries: secret not only for the public, but even for the accused themselves. The secrecy of the trial was only equalled by the publicity and

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The three aspects in the process of criminalization (the normative construction of criminal categories, trial and sanction) do not always meet up. Not all crimes established by law are prosecuted and not all crimes prosecuted are punished. On the one hand, as has been recognized by modern criminology37, there is a large, unknown number of unprosecuted crimes. These do not even reach the state of being considered for prosecution, the majority being white collar crimes (corruption, embezzlement, malversation of funds, fraud, economic, financial and fiscal crimes, etc.) and even when they are prosecuted the judiciary is particularly inept and inefficient in bringing such cases to trial. The authors of these crimes often escape legal sanctions, owing to the long drawn out nature of the trial because of its complex and lengthy preparation and delaying tactics of the defence, the frequent expiration of statutory limitations and the absence of the defendants (fugitives from justice). Then, besides these causes, there are work casualties, industrial illnesses due to infringements of health and safety regulations, pollution and food contamination, etc. The process of criminalization of an ethical and individualizing character is thereby directed towards a small section of deviants sociologically qualified in terms of their membership of the lower and midlower classes. By contrast the response to the crimes of the powerful and white collar sectors in general is much weaker. This explains how legal statistics reveal an overwhelming presence of Lumpenproletariat offenders. It also explains the bourgeois ideology as to the lower classes' propensity towards crime and the upperclass bias of social alarm vis i vis the question of crime. All this does not simply depend on the nature of the hierarchy ofrights defended by the penal code. It is also dependant on the fact that the penal code itself, owing to the low level of the criminalization process, is largely a simple ideological index. This results in a further accensolemnity of punishment. The situation is precisely the opposite after the

bourgeois revolution: the publicity of the trial is followed by the secrecy of

punishment. See M. Foucault, Surveiller e t punir, cit.

3 7 See E. H. Sutherland, Principles of Criminology,(Philadelphia,1947).

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tuation of the ethical mechanism in penal repression: it simultaneously allocates blame t o the individual and strengthens the ideology of the existing order.

The third Marxian suggestion relates to the "antisocial" matrix of modern criminal deviancy. We think this is well expressed in those parts of Holy Family where, having attacked bourgeois fetishism which sees the individual as free and morally responsible, Marx locates the roots of criminality in the anti-social character of capitalist society itself: If correctly understood interest is the principle of all morality, man's private interest must be made t o coincide with the interest of humanity. If man is unfree in the materialist sense, i.e. is free not through the negative power to avoid this or that, but through the positive power to assert his true individuality, crime must not be punished in the individual, but the anti-social sources of crime must be destroyed, and each man must be given social scope for the vital manifestation of his being. If man is shaped by the environment, his environment must be made human38.

While such a perspective implicitly suggests an empirical approach t o a modern science of deviancy understood as a sociology of criminal behaviour, it also counters the ethicism and organicism of the Leninist theory of "transition", which relies on the prospect of a withering away of the state and law. In this early work, as in later writings, Marx's representation of conlmunist society even with its hypothesis as to the overcoming of "structural" conflict, does not appear to be inspired by an organicist ethicalpolitical model or a sociology of integration and social consensus. To build socialism is collectively t o shape a social space wherein each, through "free and scientific work", can assert his "true individuality". This would appear to exclude any corrective education of individual deviants; it appears to emphasize the need for intervention at the level of the social "surroundings" and econom38

K. Marx, The Holy Family,cit., p. 179.

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ic structure which condition the freedom of individuals, who are not seen as metaphysical entities but as a synthesis of social relations. Within this framework, socialism is the organizational structure which leads to the development of needs, abilities, enjoyments and individual productive energy in a creative and "universal exchangeH39. This is the complete opposite of an organicist conception of man and society; it is a break both with the Christian conception of guilt and punishment and with the ethical theories which are directly or indirectly inspired by this conception in capitalist and "socialist" countries alike. ~vidently,this framework implies the overthrow of the penal system and institutions insofar as these are based on a Christian conception of freedom, guilt and punishment. The basic assumption of the bourgeois ideological tradition is that of freedom as freedom of choice and not freedom to adhere, freedom-participation. This is reflected in the economic organization of capitalism. In fact, in one respect, the relations of waged labour reduce the "freedom t o work" to the simple ability to supply or not supply working energies in exchange for a quota of capital. In the latter case, this results in the total exclusion from control of the social process of production and any possibility of self-realization through labour. In another way, the representative system recognizes the citizens' right t o exercise, through the vote, a formal sovereign act which, at the same time, excludes him from any direct participation in the exercise of general social functions. This can be seen as a general desocializing factor which contributes to the development of "antisocial sources of crime". That is to say, the social atomization and the split in individuals experience through their ownership of labour power on the one hand and their formal right to be represented by a delegated political power on the other. Thus if we assume, with Marx, that the prime root of crime is located in the lack of a guaranteed "social space" in which all can - -

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K. Marx, Grundrisse der Kritik der politischen ~ k o n o m i e (Berlin: , Dietz Verlag, 1974), p. 387. 39

Luigi Ferrajoli and Danilo Zolo exercise a nonformal freedom, then, clearly, the socialization of the means of production, the abolition of waged labour and the recomposition of the social division of labour (which are cardinal elements for a political strategy worthy of the name of socialism) should also be seen as part of a strategy against crime. If the "source of crime" is neither the individual conscience nor free will but first of all an organization of social space which denies man the right t o assert his "true individuality", then transition toward a society which is less selective, less hierarchic and less bureaucratic also constitutes a transition towards a social order which casts out and stigmatizes fewer people; that is to say, it would be less criminalizing. Thus, a less criminal society is not, paradoxically, a more moral society, it is a society freed from Christian-bourgeois ethical categories: it is a society without morals since morality tends to be gradually resolved in a pluralistic and synergic interaction between interests and liberties.

The three theoretical suggestions above described are statements of ~rinciplewhich remain very abstract and general. However, they do permit clarification of the social character of "penal responsibility" which points to the need for the socialization of criminal treatment. As such, they provide a theoretical basis for an innovative criminology which can gain from modern criminological research, namely from the labelling theory to functionalist theories of anomie, from studies of criminal subcultures to psychoanalytical examinations of criminality and its punishment. They also permit a response, though perhaps a rather summary one, t o the second issue we raised at the beginning of our essay as t o a political strategy for crime from a socialist standpoint. We think that, essentially, there are four possible strategies with regard to criminal policy. The first two relate to the politics of prevention; the remaining two relate t o the forms in which the deviant is treated. The first hypothesis is related to the structural basis of criminal

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deviancy of a marginal or Lumpen kind. It consists in the introduction of social guarantees capable of preventing the marginalization of the workforce, and the desocialization and cultural disintegration thereby induced. If it is true that in modern society criminalized deviancy has structural roots in the precarious nature of waged labour, in the mechanism of market- forces with the consequent employment instability, then the foremost element in an innovative criminal policy lies in a transformation of the organization of production which can ensure employment and the means of existence for everybody. In this respect, recent developments in ~ t a l yprovide an exemplary case. Many people are feeling the impact of the economic crisis and youth is the worst hit. For most of the young the prospects 0-f a steady job and social integration are bleak. his has iesurted in an incriase in the number-of people living on the margins of society and in the growth of related subcultures, all of which is evident in the growth of certain types of crime such as theft, robbery and generally crimes against property together with a rise in the level of juvenile delinquency and the development of phenomena such as drug consumption, terrorism and organized criminality40.

The second proposal relates to these subjective and cultural superstructural factors which operate in the genetic processes of marginal criminality. It has been noted that the development of criminal subcultures is linked to that of the social disintegration which accompanies the processes of marginalization. In political and cultural terms, this can only be overcome by the organization 40 The number of minors charged has risen from 20,553 in 1955 to 23,689 in 1965, to 29,400 in 1973 (ISTAT, Annuario di statistiche giudiziarie. 1955, Roma 1957, p. 133; ISTAT, Annuario di statistiche giudiziarie. 1965, Roma 1968, p. 279; ISTAT, Annuario d i statistiche giudiziarie. 1974, Roma 1976, p. 278).

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of the lower sections of society; such organization must be capable of opposing the desocializing mechanism which operates in advanced industrial societies, and replacing the absence of "sociality" with new social forms. Thus the first aims of an innovative criminal policy would be: politicization and social activity, political organization and the growth and raising of the consciousness and solidarity of outcast and oppressed groups. In this way it would be ~ o s s i b l e t o promote subcultures to alternatives to dominant models and overcome the atomization and dispersion of marginal sectors, in order to transform individualistic and apolitical rebellion into democratic political struggle. The first precondition to all this should be political unity between the proletariat and the Lumpenproletariat together with the rejection of traditional moralistic and discriminatory attitudes toward marginal sectors. The second condition lies in the need for the greatest political freedom. Unlimited political freedom and the daily exercise of this in the social struggle can ensure the active participation of citizens in political life, their intellectual and civil maturation and the overcoming of political alienation and cultural impoverishment.

Just as a preventive criminal ~ o l i c yshould be geared towards the socialization of the "antisocial source of crime", a socialist strategy for dealing with criminal deviancy should be directed towards thk socialization of penal treatment. The first prospect in this respect is a negative one. It consists in the toppling of the Christian and bourgeois ideology of culpability and responsibility which, as we have said, is at the root of modern processes of criminalization. ~f it is true that the source of crime cannot be located in the individual mind or volition but must be sought for first of all in social and cultural conditions, then it s h o d d not be mainly a question of pursuing the guilty and responsible individual, but rather a matter of socializing guilt and responsibility. The short term policy on the institutional level would

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imply a policy directed toward the reduction of penal intervention so that it could become a secondary and exceptional form of anticriminal therapy. Firstly, such a policy must result in a depenalization of certain types of legal infringements. Some categories of crime should be simply quashed (crimes of opinion, association and trade union offences together with certain categories of crime directed t o the repression of the outcasts); other listed crimes to be considered as administrative infringements, should be punished by sanctions of a nondetentive kind and without all the ritual of the court case, but obviously with the right of cross examination (disturbances of the peace, resistance to and abuse of public officers, street brawls, etc.); others actions to be brought by the offended party only (numerous crimes against property, from theft to minor frauds). Secondly, the hierarchy of values protected by the penal establishment should be revised; it should be based on the identification of the needs and interests of the community; thus it would mean the revision of the present hierarchy which is characterized by the primacy of private, economic interests and the prestige of authority. This should be replaced by a different hierarchy which places at its centre the protection of the environment, health, work and the general interests of the community. In our view, such a vision would demonstrate that in numerous cases the protection of majority interests should not be principally sought through penal intervention; that is, it should not be exclusively directed at the individual but should be sought through transformations of the social organization or, at least, through a different and complex system of institutional control. If one thinks of pollution, food additives, work casualties, industrial diseases, embezzlement, corruption, financial crimes, etc., one must admit that penal intervention has always been very weak. Confinement, in particular, is diametrically opposed to anti-criminal therapy: it only corresponds t o a pedagogic model of a penitent and expiatory nature. 1f it is true that crime is always a sign of the lack of sociality in the life of the delinquent, then the only effective

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therapy would be one with a socializing effect. Prison, by contrast, generates crime precisely because it has a further desocializing effect: it means institutional exclusion, isolation and solitude; it aggravates the lack of sociality which gave rise t o the criminal deviancy, or rather it only permits subcultural socialization in the form of institutionally criminal prison life. More generally, all restrictions on civil rights are criminalizing: it is a mutilation of the individual as a subject and synthesis of social relations and therefore a mutilation of his sociality. All this indicates the need for the gradual supersession of prison in a socialist perspective. It is in fact evident that the prison, which is already becoming obsolete in advanced industrial societies, should be abolished in a "socialist" society of a nonregressive kind. Within a socialist framework, its gradual supression is the corollary of two theoretical strategies which we have stressed as essential: the supersession of penal moralism and at the same time of any theological and stigmatizing concept of punishment ; secondly, and inversely, the socialization of the control and treatment of deviancy.

We have spoken of "socialization" of the treatment of criminal deviancy. This expression is very ambiguous and liable t o a number of different interpretations. In principle we do not trust the term, as we distrust any other general formula such as "re-education", "readjustment", "social recovery", "rehabilitation", etc. Above all, we do not trust the term because it has been used t o justify reeducative models of a persuasive and paternalistic kind to be carried out in prison institutions. However one wants to reform the prison, it will always remain an antisocial place and the reeducative or resocializing measures will always contain an authoritarian element based on the logic of punishment and reward. Prison can always play a role as an instrument of ideological integration and violent acculturation. But these same remarks apply t o those general proposals for alternative penal institutions,

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where there is no precise specification as t o form and content, In this generic sense, they suggest and envisage the model of an educated, adapted, integrated, homogeneous society. We think that the only socializing model which can be pursued should possibly be of a noninstitutional and, above all, of a nondetentive kind. The forms and means of socialization should be, in their turn, "social". This means that a socialization of the deviant can only be achieved by ensuring the most widespread opportunities for human development and for the exercise of civil and political rights so that the deviant is turned into an active agent of social relations. The hypothesis advanced here amounts to a rejection of an alternative "socialist" model of "institutional treatment" of criminality. For us the alternative does not lie in a different juridical form of penal treatment, but in the gradual reduction of penal treatment. This does not imply the hypothesis of a society which will not have its deviants and conflicts, and in which, therefore, penal law will disappear as "superfluous". On the contrary we consider possible and desirable not the end of conflictuality but the gradual liberation of at least a part of it and hence of individual deviancy, which today is repressed by the mechanism of social integration. Without excessive social risks, a part of the deviancy could be legally tolerated as in fact today happens tacitly for the majority of "white collar" crimes: tolerated as a sign and product of tensions and social dysfunctions that, apart from reparation for damages, cannot be resolved by penal detention. What in our opinion must be radically questioned is in fact the effectiveness of penal detention as a social deterrent. Today it is believed t o be not only indispensable, but effective in proportion to its length. This is a dogmatic opinion to be put t o the most severe test41. Another part of the deviancy should be treated by means of social institutions (nondetentive in nature) that could make possible a real and See on this subject C. Charles and D. Benson, 'Restitution as an Alternative t o Imprisonment', Detroit College of Law, 1980, pp. 523-98.

41

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in some way autonomous "resocialization", according t o a model which today is roughly indicated by institutions like "probation" and the other forms of nondetentive limitations of personal liberty (house arrests, the duty of reporting periodically to the police, confinement t o a limited area, exclusion from professional registers, etc.). Of course, a great effort of sociological imagination and institutional experimentation would be necessary, based on the fact that penal intervention (particularly detentive) is not only inadequate but often counterproductive as an instrument of social defence. Even though this proposal is likely to be considered utopian today and socially dangerous, we do think that in the long run it is the only rational alternative to the irrationality of the conception of prison as an instrument of social integration which paradoxically operates through segregation and depersonalization. And it is the only alternative to the idea of social defence operating through those very institutions devoted to criminal specialization and education to violence, prisons in all their forms. We want to stress that in our opinion to oppose the principle of individual responsibility, moralism and bourgeois juridical conceptions of guilt does in no way imply the abandonment of the juridical form of social control and penal treatment, as upheld by E. B. Pa~ukanis42.By stating this, we want clearly to dissociate ourselves from the antiformalistic and illiberal tendencies t o which Marxist theory has given in all too frequently and which are still present in the left wing attitude today. This is not more than a

This is the fundamental suggestion of E. B. Pazukanis (see: 'The General Theory of Law and Marxism', in Soviet Legal Philosophy, cit., pp. 205-25), which we consider worthy of categorical rejection. Pabkanis suggests the suppression of the legal form of trial and penal treatment and its replacement by "measures of social defense" of a technical kind and without any legal predetermination of the form and the length of the punishment. Justice "will become an entirely independent function of medical pedagogy" operating on the basis "of the symptoms characterizing a condition which is socially dangerous" (ibid., pp. 222-3).

42

Marxism and Criminality restatement of the old and sad Stalinist notion of legality: the suppression of the typicality of crimes and the proportionality and fixed nature of punishments, the fact that crimes are not determined generally and abstractly but according to their authors (enemy of the people, etc.). In our view, these tendencies must be firmly rejected. As must all therapeutic and pedagogic ideas of ~ e n a llaw and all correctional and re-educative ideas of punishment, from that contained in Art. 27 of the Italian Constitution to those induced by the workers movement from a long tradition of an ethical and authoritarian kind. Punishment, any kind of punishment, even the "softest" and the most "humane" of punishments should be regarded for what it is: institutional violence (necessary under certain conditions) which cannot be cloaked in humanitarian terms and which should be reduced and in any case disciplined by juridical norms. Any hypothesis of the reduction of penal intervention should be a reduction of the penal treatment ax such and not of its juridical form. Socialization of responsibility, then, does not mean modification of the processes of "individualizing" crirninalization at the cost of the formal guarantees provided by "bourgeois law". For, as long as it is established by law, penal treatment of the individual must be legally guaranteed, namely: firstly, by the principle of the legality of crimes, in the second place by the principle of the legality of the penalty, thirdly, by procedures of defence. In other words, penal repression must be of a juridical kind, not generically social or spontaneous: protected by all the guarantees of "bourgeois law" and even further. The abandonment or reduction of these guarantees would in fact, in the name of the regressive myth of a perfectly self-regulating society, lead t o any possible arbitrary and pre-modern (pre-bourgeois) form of penal law. Dept. of Law University of Camerino and Dept. of the Theory and History of Law University of Florence, Italy

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[Footnotes] 34

Character, Purpose, and Criminal Responsibility Michael D. Bayles Law and Philosophy, Vol. 1, No. 1. (Apr., 1982), pp. 5-20. Stable URL: http://links.jstor.org/sici?sici=0167-5249%28198204%291%3A1%3C5%3ACPACR%3E2.0.CO%3B2-T

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