Law and Violation of Law
Russkaya Pravda – that most ancient historical monument of the Kievan period of our history – consists of 43 articles (the so-called academic register). Only two articles do not relate to violations of criminal or civil law. The remaining articles either determine a sanction, or else contain the procedural rules applicable when a law has been violated. Accordingly, deviation from a norm always constitutes their premise. The same picture is presented by the so-called barbarian laws of German tribes. For example, in the Salic Law only 65 of 408 articles do not have a punitive nature. The oldest monument of Roman law – the laws of the Twelve Tables – begins with rules defining the procedure for initiating litigation: “Si in ius vocat, ni it, antestamino. Igitur im capito”. (If a man is called to court and he does not go, this should be attested, and he should be taken there.)
According to the observation of the well-known legal historian Maine, “it is necessary to recognize as a rule that the more ancient the code, the fuller and more detailed will be its statement of the criminal section”. [53]
Non-observance of a norm, or violation of it, the disruption of normal intercourse and ensuing conflict: this is the starting point of the most important content of ancient legislation. Conversely, what is normal is not fixed in the beginning as such – it merely exists. The requirement that the scope and content of mutual rights and obligations be fixed and exactly established, appears when calm and peaceful existence is violated. From this perspective Bentham is right when he asserts that a statute creates rights as it creates crimes. Historically, the legal relationship assumes its specific character pre-eminently in the facts of violations of law. The concept of theft was defined earlier than the concept of private property. The relationships attending a loan were fixed when the borrower did not want to repay it: “if one tries to recover a debt and the debtor refuses etc.” (Russkaya Pravda, Academic Register, Art. 14). The original significance of the word pactum was not that of contract, but pax, peace, i.e. an amicable conclusion to hostility, “peaceful” (Vertrag) supposes the end of “unpeaceful” (Unvertraglichkeit).
Thus, if private law directly reflects the most general conditions of existence of the legal form as such, then criminal law is the sphere where the legal relationship achieves its maximum intensity. Here, above all and most clearly the legal element is isolated from everyday life and obtains full independence. The transformation of the actions of the concrete person into the action of a party, i.e. into a legal subject, takes place particularly clearly in the judicial process. In order to emphasize the difference between everyday activities and expressions of will on the one hand, and juridic expressions of will on the other, ancient law used special ceremonial formulae and rituals. The drama of the judicial process noticeably created a separate juridic life contiguous with the real world.
Of all types of law it is criminal law that has the ability, by its own direct and crude manner, to assume a separate personality. This law has always, therefore, attracted the most ardent and practical interest, and punishments for its violation are usually closely associated with each other – thus, criminal law, so to speak, assumes the role of the representative of law in general. It is the part which replaces the whole.
The origin of criminal law is historically linked with the custom of the blood feud. It is certain that these phenomena are genetically close to one another but a feud becomes fully a feud only when fines and punishment follow it, i.e. even these later stages of development, as is often observed in the history of mankind, explain the intimations included in the preceding forms. If one approaches the same phenomena from the opposite direction, we see nothing but a struggle for existence, i.e. a truly biological fact. For the theorists of criminal law viewing the later period, blood feud corresponds with ius talionis, i.e. with the basis of equal retribution, under which the avenging of an insult by the insulted (or by his tribe) eliminated the possibility of further feuding. In fact, as Kovalevsky correctly points out, the most ancient blood feuds did not have this nature. Internecine wars are transmitted from generation to generation. An insult, although committed in retribution, itself becomes the basis for a new feud. The insulted and his relatives become – insultors – and so on from one generation to another, sometimes until the entire struggling kin-groups are liquidated. [54]
Feud begins to be regulated by custom and is turned into retribution by the Talic rule “an eye for an eye and a tooth for a tooth”. Only then does a system of composition or a monetary fine begin to be established alongside it. The notion of equivalence, this first purely juridic idea, always has its source in the form of a commodity. A crime may be considered as a particular aspect of exchange, in which the exchange (contractual relationship) is established post factum, that is, after the intentional act of one of the parties. The ratio between the crime and the punishment is reduced to an exchange ratio. Therefore Aristotle, in discussing equivalent exchange as a type of justice, divides it into two aspects: equivalence in voluntary and in involuntary actions. Economic relationships such as purchase and sale, loan etc. are classified as voluntary actions; these include various types of crime invoking punishment as an equivalent. The definition of crime as a contract concluded against one’s will, also belongs to Aristotle. Punishment emerges as an equivalent mediating the harm done to the victim.
This notion was adopted, as is well known, by Hugo Grotius. However naive these constructs may seem at first glance, they latently contain much more sensitivity to the form of law than do the eclectic theories of modern jurists.
In the example of blood feud and punishment we can observe, with extraordinary clarity, the imperceptible stages through which the organic or biological is connected with the legal. This merger is intensified by the fact that man is not capable of renouncing that to which he is accustomed, i.e. the legal (or ethical) interpretation of this phenomenon of animal life. He involuntarily finds in the actions of animals that which is placed in them, factually speaking, by later development, i.e. by the historical development of man.
In fact the act of self-defence is one of the most natural phenomena of animal life. It makes no difference whether we encounter it as the individual reaction of a particular animal or as a collective exercise in self-defence. According to the testimony of scholars who observe the life of bees, if a bee tries to penetrate a strange hive to steal honey, then the bees protecting the entrance at once attack it and begin to sacrifice it; if it actually penetrates the hive then they kill it immediately. There are similar cases in the animal world when the reaction is separated by a certain interval of time from the circumstance which instigated it. The animal does not respond to the attack immediately, but puts it off to a more suitable time. Self-defence here becomes a feud in the true sense of the word. Since for modern man feud is inseparably tied to the idea of equal retribution, it is not surprising that Ferri, for example, is ready to recognize the presence of the “juridic instinct” among animals. [55]
In fact the juridic idea, i.e. the idea of an equivalent, becomes fully clarified and objectified only at that stage of economic development when it becomes the standard form of equivalent exchange, i.e. not in the world of animals but in human society. For this it is by no means necessary that feud was entirely forced out by blood money.
And even when blood money is refused as something shameful-and such a view was dominant for a long time among primitive peoples – the realization of a personal feud was recognized as a sacred obligation. The very act of feud assumed a new form which it did not have when there was not yet an alternative. Specifically, it now included an image of the only adequate method: retribution. The refusal of blood-money in monetary form emphasized that blood-money was the only equivalent for blood spilled earlier. The feud is transformed from a purely biological phenomenon into a legal institution to the extent that it is linked with the form of equivalent exchange, with exchange-value.
The criminal law of antiquity emphasizes this bond with particular clarity and immediacy, because damage to property and personal injury are directly equated with a naivety that later eras abandoned in shame. From the perspective of ancient Roman law there was nothing surprising in the fact that an insolvent debtor paid with parts of his body (in partes secare), and one guilty of mutilation answered with his property. The idea of equivalent exchange appears here in all its starkness – uncomplicated and not obscured by any related circumstances. Accordingly, criminal procedure also assumes the character of a commercial transaction. “We must”, says Jhering, “imagine a market in which too much money is asked by one side and too little is offered by the other, until a bargain is reached. An expression of this was pacere, and for the price agreement itself – pactum.” “The duty of an intermediary selected by both parties”, adds Jhering, “finds its beginning here. In ancient Scandinavian law an intermediary determined the amount to be paid for reconciliation (arbiter in the original Roman sense).” [56]
With regard to so-called public punishments, there is no doubt that they were originally introduced mainly for fiscal reasons, and that they served as a means of filling the treasury of the representatives of authority. “The state”, says Henry Maine, “has not taken a fine from the defendant for the harm which he is supposed to have done to the state, but has commanded for itself only a certain share of the compensation made to the plaintiff in the form of just retribution for the loss of his time and peace.” [57] From Russian history we know that “Just retribution for loss of time” was so eagerly collected by princes that, according to chronicled testimony, “the Russian land was impoverished by fines and sales”. Moreover, this phenomenon of judicial theft was observed not only in ancient Russia, but also in the empire of Charlemagne. In the eyes of the ancient Russian princes, judicial revenues were no different from other patronage bestowed on their servants etc. It was possible to buy one’s way out of a prince’s court by paying a certain sum (the barbarian wer or fine of Russkaya Pravda).
However, in addition to public punishment as a source of income, punishment appeared rather early as a method of ensuring discipline and as a major safeguard of the authority of priestly and military power. It is well known that in ancient Rome the majority of serious crimes were at the same time crimes against the gods. For instance, one of the most important violations, for the landowner, was the wilful moving of boundary markers. From ancient times this was considered a religious crime, and the head of the guilty party was condemned to the gods. The priestly caste, acting as the guardians of order, pursued not some ideal but a most essential material interest, because the property of the guilty party was confiscated for its use. On the other hand, the punishment which the priestly organization inflicted on those who tried to appropriate its incomes – in the form of deviations from established ceremonies and gifts, attempts to introduce new religious teachings etc. – bore the same public character.
The influence of the priestly organization (i.e. the Church) on criminal law was felt in the fact that although punishment preserved its nature of equivalence or retribution, this retribution was neither directly linked with harm to the injured party nor based upon the latter’s claim. Indeed, punishment attained a higher abstract meaning as godly punishment. The Church thus tried to combine the material element of compensation or harm with the ideological motive of expiation and cleansing (expiatio). It thus tried to construct a more appropriate mechanism for maintaining social discipline (i.e. class domination) than that provided by a criminal law based on private vengeance. Indicative of this were the solicitations of the Byzantine clergy with respect to the introduction of capital punishment in Kievan Russia.
The same goal of maintaining discipline determines the nature of the punitive activity of a military commander. The latter renders justice and reprisal, both over subjugated peoples and over his own troops who had planned a mutiny, treason, or who were simply disobedient. The notorious story about Ludwig – who with his own hands decapitated a disobedient soldier – shows the primitive nature of this reprisal in the formative period of the German barbarian states. In earlier times the task of maintaining military discipline had been conduced by a popular assembly; with the consolidation and expansion of monarchical authority this function naturally adhered to the monarchs and was naturally identified with the protection of their own privileges. As far as general criminal offences were concerned, the kings of the German tribes (and also the princes of Kievan Russia) for a long time showed only a fiscal interest toward them.
This state of affairs changed with the development and consolidation of class and estate boundaries. A spiritual and temporal hierarchy valued the protection of its privileges, in the struggle with the lower and oppressed classes of the population, as its first priority. The decomposition of the natural economy and the concomitant increase in the exploitation of the peasantry, the development of commerce and the organization of a class state, are different tasks to criminal justice. In this period criminal justice became less a method of raising income for the authorities and more a method of merciless and harsh reprisal against “evil people”, i.e. primarily against peasants who had fled from unbearable exploitation by landlords and the landlords’ state, and against the pauperized population, vagrants, mendicants etc. The police and the investigative apparatus had to play the main role. Punishment became a method of physical elimination or of instilling terror. This was the era of ordeals, corporal punishment and cruel methods of capital punishment.
Gradually, therefore, that complex amalgam was prepared which now constitutes modem criminal law. We can easily discern the composition of its historical strata. In essence (that is, from a purely sociological point of view) bourgeois society supports its class state by its system of criminal law and thereby holds the exploited class in obedience. In this respect, its judges and its private “voluntary” organizations of strike-breakers pursue one and the same goal.
The criminal jurisdiction of the bourgeois state is organized class terror. This differs only in degree from the so-called extraordinary measures applied at times of civil war. Spencer indicated the full analogy and even the identity between the defensive reaction directed against external attacks (war), and the reaction directed against violators of the internal order (legal or judicial defence). [58] Measures of the first type (i.e. criminal punishment) are applied primarily against declassé social elements, and measures of the second type primarily against active proponents of a new class rebelling against authority. This fact does not change the essence of the matter, nor does the greater or lesser correctness and complexity of the procedure applied. An understanding of the true meaning of the punitive activity of the class state is possible only by perceiving its antagonistic nature. So-called theories of criminal law which derive the principle of punitive policy from the interest of society as a whole are occupied with the conscious or unconscious distortion of reality. “Society as a whole” exists only in the imagination of these jurists. In fact, we are faced with classes with contradictory, conflicting interests. Every historical system of punitive policy bears tile imprint of the class interest of that class which realized it. The feudal lord executed disobedient peasants and city dwellers who rose against his power. The unified cities hanged the robber-knights and destroyed their castles. In the Middle Ages, a man was considered a lawbreaker if he wanted to engage in a trade without joining a guild; the capitalist bourgeoisie, which had barely succeeded in emerging, declared that the desire of workers to join unions was criminal.
Thus, class interest places the imprint of historical concreteness on each given system of punitive policy. Only the full disappearance of classes enables the construction of a system of punitive policy in which every element of antagonism will be excluded. But the question remains of whether a punitive system is still necessary in these conditions.
If by its content and nature authoritative punitive activity is a weapon for the maintenance of class domination, then in its form it acts as an element of the legal superstructure, and is included in the legal system as one of its branches. We showed above that the naked struggle for existence adopts a legal form through the introduction of the principle of equivalence. The act of self-defence ceases to be merely an act of self-defence, and becomes a form of exchange, a type of intercourse which takes its place alongside “normal” commercial exchange. Crime and punishment become such (i.e. assume their legal nature) on the basis of the redemption transaction. As long as this form exists, so too will the class struggle be conducted through law. Conversely, the very term criminal will lose all meaning to the extent that the element of the relation of equivalence disappears from it. [59]
Considering the nature of bourgeois society as a society of commodity owners, we would have to suppose a priori that its criminal law was the most juridic in the sense we established above. However, we at once encounter certain difficulties here. The first difficulty is the fact that modern criminal law does not proceed primarily from the harm done to the victim but from the violation of the norm established by the state. Once the victim and his claim recedes to the background then, it is asked, where is the form of equivalence? But in the first place, no matter how far the victim recedes to the background he nevertheless does not disappear, but continues to constitute the setting in which the criminal law action is played out. The abstraction of a violated public interest rests on the fully real figure of the victim, who participates in the process – personally or through representatives – and who gives this process a living significance. Moreover, even when the concrete victim in fact does not exist, when “merely a statute” is assailed, this abstraction implies its real embodiment in the person of the public prosecutor. This division, in which a state authority appears both in the role of a party (the prosecutor) and in the role of a judge, shows that as a legal form the criminal process is indivisible from the figure of the victim demanding “retribution”. It is therefore indistinguishable from the more general form of agreement. The prosecutor, as is expected of a “party”, asks a “high price”, i.e. a strict punishment; the criminal seeks leniency, a “discount”, the judge decrees “according to justice”. Discard this form of agreement, and you will deprive the criminal process of its “Juridic spirit”. Imagine for a minute that the court is actually occupied only with the consideration of how to change the conditions of life of a given person – in order to influence him in the sense of correction, or in order to protect society from him – and the very meaning of the term punishment evaporates. This does not mean that every criminal court and punitive procedure is entirely deprived of the simple and comprehensible elements mentioned above. But we wish to show that there is a peculiarity in this procedure which is not covered by the clear and simple considerations of social purpose. This is an element that is irrational, mystifying and incoherent, and it is the specifically legal element.
Further difficulty lies in the following fact. Ancient criminal law knew only the concept of harm. Crime and guilt, occupying such an eminent place in modern criminal law, were absent at this stage of development. Conscious, careless and accidental actions were evaluated exclusively by their consequences. The customs of the Salic Franks and the modern Ossetians stand at the same stage of development in this respect. The latter made no distinction between death resulting from a blow with a knife, and death proceeding from the fact that a rock was knocked off a hill kicked by the hoof of another’s bull.
From this, as we see, it does not follow that the concept of responsibility was in itself alien to ancient law. It was merely determined by another method. In modern criminal law – in accordance with the radical individualism of bourgeois society – we have the concept of strict personal responsibility. But ancient law was penetrated by the principle of collective responsibility: children were punished for the sins of their parents, and the kin-group answered for each of its members. Bourgeois society dissolves all earlier primitive and organic ties between individuals. It proclaims as its basis: every man for himself, and it implements this most consistently in all areas, including criminal law. In the second place, modern criminal law introduced the psychological element into the concept of responsibility and thus gave it a greater flexibility. It divided it into degrees: responsibility for a result which was foreseen (intent), and responsibility for a result which was unforeseen but which could have been foreseeable (negligence). Finally it constructed the concept of non-imputability, i.e. the complete absence of responsibility. However, this new element, the degree of guilt, by no means excludes the principle of equivalent exchange, but derives from it and creates a new basis for its application. What does this division signify other than a clarification of the conditions of the bourgeois judicial transaction! The gradation of liability is the basis for the gradation of punishment – a new, if you wish, ideal or psychological element, which is combined with the material element (the injury) and the objective element (the act) – in order to provide a joint basis for determining the ratio of punishment. Responsibility is heaviest for an action committed with intent and accordingly, ceteris paribus, entails a heavier punishment; if an action is committed negligently the responsibility is less heavy: ceteris paribus, the punishment is reduced; finally, if responsibility is absent (criminal intent is non-imputable), there is no punishment. If we replace punishment with Behandlung (“method of influence”), i.e. a legally neutral, medical-pedagogical concept, we reach very different results, This is so because primarily we will be interested not in the proportionality, but in the correspondence of the measures taken to the goals which are placed before it, i.e. to the goals of protecting society from the criminal etc. From this point of view the relationship may appear as the opposite; that is, in the case of the least responsibility the most intensive and long-lasting measures of influence may seem necessary.
The idea of responsibility is necessary if punishment is to appear as a method of payment. The criminal answers for the crime with his freedom, and he answers with an amount of his freedom which is proportional to the gravity of what he has done. This idea of responsibility is unnecessary when punishment is liberated from the character of equivalence; and when no remnant of this remains, punishment ceases to be punishment in the legal sense of the word.
The juridic idea of responsibility is not scientific because it leads directly to the contradictions of indeterminism. From the viewpoint of the causal chain which leads to an event, there is not the slightest basis for preferring one link to the others. The actions of a man who is psycologically abnormal (irresponsible) are just as conditioned by a series of causes, i.e. inheritance, conditions of life, environment etc., as are the actions of a normal (responsible) man. It is interesting to note that punishment applied as a pedagogical measure (i.e. outside the legal idea of equivalence) is entirely unconnected with considerations of imputability, freedom of choice etc., and does not require these ideas. The expediency of punishment in pedagogy – we speak here of course of expediency in the most general sense, independent of the selection of forms, leniency, strictness of punishment etc. – is determined exclusively by the presence of the sufficiently developed ability to understand the connection between one’s action and its unpleasant consequences, and the retention of this connection in one’s mind. Even persons whom the criminal law does not hold responsible for their actions – children of a very young age, and the psychologically abnormal – are considered responsible in this sense, i.e. they are subject to influence in a definite direction.
Punishment proportionate to guilt chiefly represents the same form as revenge related to damage. Above all, it is characterized by the numerical, mathematical expression for “severity” of the sentence: the number of days, months etc., of deprivation of freedom, the amount of monetary fine, deprivation of various rights.
Deprivation of freedom – for a definite term previously indicated in the judgement of a court – is the specific form in which modem, that is, bourgeois capitalist criminal law, realizes the basis of equivalent retribution. This method is deeply, but unconsciously connected with the concept of the abstract man and of abstract human labour time. It is not accidental that this form of punishment grew strong and eventually seemed natural and expected, in the nineteenth century, i.e. when bourgeois society was fully developed and had consolidated all its particular features. Prisons and dungeons, of course, existed even in ancient times and in the Middle Ages, alongside other means of physical coercion. But at that time prisoners were usually confined until their death or until the payment of a ransom.
A necessary condition for the appearance of the notion that payment for a crime should be by a previously determined amount of abstract freedom, was that all concrete forms of social wealth had to be reduced to the simplest and most abstract form – to human labour time. Here we undoubtedly observe yet another case affirming the mutual protection of the various aspects of culture. Industrial capitalism, the Declaration of the Rights of Man and the Citizen, Ricardo’s political economy, and the system of terms of incarceration in prison-these are phenomena of the same historical period.
Equivalence of punishment – in its crude and overtly material form as the causing of physical harm or the exacting of monetary compensation – specifically because of this crudeness preserves a simple meaning accessible to everyone. But it loses this meaning in its abstract form of the deprivation of freedom for a definite term, although we continue to speak of a measure of punishment proportional to the gravity of the act.
Therefore, it is natural for many criminal law theorists (primarily those who consider themselves the most advanced) to attempt to remove this element of equivalence because it has clearly become inconvenient, and to concentrate attention on the rational goals of punishment. The mistake of these progressive criminologists is that in criticizing so-called absolute theories of punishment, they suppose that they are confronted only by false views and confused thoughts which can be dissolved simply by theoretical criticism. In fact, the inconvenient form of equivalence does not derive from the confusion of individual criminologists, but from the material relationships of commodity production, and it is nurtured by them. The contradiction between the rational goal of the protection of society – or the re-education of the criminal – and the principle of the equivalence of punishment, exists not in books and theories but in life itself in judicial practice, in the social structure itself. Similarly, the contradiction between the fact of the bond of social labour as such, and the inconvenient form of expression of this fact in the value of commodities, exists not in theory, and not in books, but in social practice itself.
Sufficient proof of this is found in various elements. If, in social life, punishment was considered as an objective, then the keenest interest would be aroused in the implementation of punishment and, above all, by its result. However, who would deny that the centre of gravity of criminal procedure for the overwhelming majority-is the court room and the moment of pronouncing the verdict and sentence?
The interest which is shown towards enduring methods of influencing the criminal is utterly negligible in comparison with the interest which is aroused in the effective moment of pronouncing the verdict and sentence, and in the determination of the “measure of punishment”. Questions of prison reform are a live issue only for a small group of specialists; broadly, the correspondence of the sentence to the gravity of the act occupies the centre of attention. If, according to common sentiment, the equivalence is properly determined by the court, then the matter will be concluded here, and the subsequent fate of the criminal is of no interest. “A study of the execution of punishment,” complains Krohne, one of the leading specialists in this area, “is the sore point of the science of criminal law.” In other words it is relatively neglected. “And moreover”, he continues, “if you have better laws, better judges, and better sentences, and the civil servants carrying out these sentences, are worthless, then you may freely throw laws into the rubbish bin and burn your sentences.” [60] But the authority of the principle of retributive equivalence is not only discovered in the distribution of social interest. It appears no less clearly in judicial practice itself. In fact, what other bases are there for those sentences which Aschaffenburg cites in his book Crimes and the Struggle against Them? Here are just two examples of a long series: a recidivist, convicted 22 times for forgery, theft, extortion etc., was sentenced for the 23rd time to 24 days in prison for slandering an official. Another, who had in all spent 13 years in prison and the penitentiary (Zuchthaus), having been convicted 16 times for extortion, theft etc., was sentenced (the 17th time) for extortion to 4 months in prison. [61] In these instances one obviously does not discuss the protective or corrective function of punishment. Here the formal principle of equivalence triumphs: for equal guilt – an equal measure of punishment. And in fact what else could the judge do? He could not hope to correct a confirmed recidivist by 3 weeks’ detention, but he also could not isolate the prisoner for life because of the mere slander of a civil servant. Nothing is left to him but to have the criminal pay in small change (a certain number of weeks of deprivation of freedom) for a minor crime. For the rest, bourgeois jurisprudence ensures that the transaction with the criminal is in accordance with all rules of the art, i.e. that each may be convinced, and may verify that the payment is justly set (public judicial proceedings), that the criminal may bargain freely (adversary process), and that in so doing he may use the services of an experienced judicial expert (admission of the defence) etc. Briefly, the state conducts its relationship to the criminal within the framework of a bona fide commercial transaction in which there are, ostensibly, guarantees of criminal procedure.
The criminal must know beforehand why he owes something and what is expected of him: nullum crimen, nulla poene sine lege. What does this mean? Does it require that each potential criminal be exactly informed of the methods of correction which will be applied to him? No, the matter is much cruder and simpler-he must know how much freedom he will forgo as a result of the judicial transaction. He must know beforehand those conditions under which payment will be demanded of him Here lies the meaning of criminal codes and criminal procedure codes.
One must not imagine that in the beginning false theories of retribution held sway in criminal law, and then later the correct point of view of social defence triumphed. It is wrong to consider development as having taken place only on the level of ideas. In fact, both before and after the appearance of the sociological and anthropological trends in criminology, punitive policy included a social or, rather, a class element of defence. However, along with this it included, and still includes, elements which do not derive from this technical goal and therefore do not permit the punitive procedure itself to be expressed wholly and with nothing remaining as a rational, non-mystifying form of socio-technical rules. These elements – whose origins must be sought not in punitive policy itself but much deeper – give real meaning to the legal abstractions of crime and punishment, and ensure their full practical significance regardless of all the forces of theoretical criticism.
We remember Van Hamel’s exclamation at the Hamburg congress of criminologists in 1905: the main obstacle for modern criminology are the three concepts “guilt, crime and punishment”; “when we free ourselves from them”, he added, “all will be better.” We may now reply that the forms of bourgeois consciousness will not be eliminated merely by ideological criticism, because they constitute a unity with those material relationships which they reflect. The transcendence of these relationships in practice – i.e. the revolutionary struggle of the proletariat and the realization of socialism – this is the only way to dispel those mirages which have become reality.
To proclaim that fault and guilt are prejudiced concepts in practice suffices for the transition to a punitive policy which would render them unnecessary. Until the time when the commodity form, and the derivative legal form, cease to place their imprint upon society, the essentially incoherent (from the non-judicial perspective) notion that the severity of each crime can be weighed on a scale and expressed in months or years of imprisonment, will continue to preserve its force and its real significance in judicial practice.
It is possible, of course, to refrain from expressing this notion in such a shockingly crude formulation. But this by no means signifies that therefore we are finally free from its influence in practice. What is the general part of every criminal code (including even ours) with its concepts of abetting, participation, contempt, preparation etc., if it is not a means to define guilt more exactly? What is the distinction between intent and negligence if not a distinction of a degree of guilt? What meaning has the concept of irresponsibility if the concept of guilt does not exist? Finally, why is the special part of the code needed if the matter is merely about measures of social (class) defence?
In fact the consistent execution of the principle of social defence would not require the fixing of individual sets of elements of crime (with which measures of punishment are largely linked and defined by statute or by the courts). It would require however, a clear description of symptoms characterizing a socially dangerous condition and the development of those methods which must necessarily be applied in each given case for social defence.
The matter is obviously not only that, as some persons think, a measure of social defence is connected in its application with subjective moments (form and degree of social danger), while punishment rests on an objective moment, i.e. the concrete set of elements of a crime established by the special part of the code. The importance lies in the character of this association. It is difficult to separate punishment from an objective basis, because it cannot discard the form of equivalence without losing its basic character. However, only the concrete structure of a crime provides something like a measurable amount, and accordingly something like an equivalent. One can make a man pay for an action, but it is senseless to make him pay for the fact that society has recognized him (i.e. the given subject) to be dangerous. Therefore, punishment presupposes an exactly fixed set of elements in a crime. A measure of social defence has no need for this. Payment by coercion is legal coercion directed towards a subject placed in the formal framework of a trial, a sentence and its execution. Coercion, as a measure of defence, is an act of pure expediency and as such may be regulated by technical rules. These rules may be more or less complex depending upon whether the purpose is the mechanical elimination of a dangerous member of society, or his correction; but in any event these rules reflect clearly and simply the objective which society has set itself. Conversely, this social objective appears in masked form in the legal forms determining punishment for certain crimes. A person subjected to coercion is placed in the position of a debtor paying a debt. This is reflected in the term “serving a sentence”. A criminal who has served his sentence returns to his starting point, to an isolated social existence, to the “freedom” to undertake obligations and commit crimes.
Criminal law, like law in general, is a form of the relationships between egoistic and isolated subjects, bearing autonomous private interests as commodity owners. The concepts of crime and punishment-as is clear from the aforesaid-are the necessary definitions of the legal form. Liberation from them will only occur when the general withering away of the legal superstructure begins. And to the extent that in fact, and not merely in declarations, we begin to transcend these concepts and to do without them-this will be the best symptom of the fact that for us, finally, the narrow horizons of bourgeois law are disappearing.
Notes
53. H. Maine, Ancient Law (1873), Russian edition translated by N. Belozersky, p.288.
54. cf. M. Kovalevsky, Modern Custom and Ancient Law (1886), Petersburg and Moscow, pp. 37-38.
55. E. Ferri, Criminal Sociology (1900), Russian edition translated and with a preface by Dril’, vol.2, p.37.
56. R. Jhering, The Spirit of Roman Law (1875), Russian edition, vol.1, p.118.
57. H. Maine, Ancient Law (1873), op. cit. p.269.
58. H. Spencer, Principles of Sociology (1883), Russian edition, p.659.
59. Thus, criminal law is a constituent part of the legal superstructure to the extent that it embodies one of the varieties of that basic form to which modem society is subordinated: the form of equivalent exchange with all the consequences which derive from it. The realization of this relationship in criminal law is one of the aspects of the Rechtsstaat as an ideal form of relationship between independent and equal commodity producers who meet in the market. But since social relationships are not limited to the abstract relationships between abstract commodity owners, the criminal court is therefore not only the embodiment of the abstract legal form, but it is also a weapon of direct class struggle. The sharper and more intense this struggle, the more difficult it is for a class to realize its domination through the legal form. In this case, the “impartial” court – with its guarantees – is replaced by an organization of direct class violence, and its actions are guided only by considerations of political expediency.
60. Quoted from G. Aschaffenburg, Das Verbrechen und seine Bekdmpfung (1905), Heidelberg, p.200.
61. ibid., pp.205-206.
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