4. Marxist as Radical Critic
Karl Marx wrote little directly on the subject of crime and punishment. But from his theoretical project was spun an entire literature of radical criminology, which interprets punishment with the help of the vision Marx's theory lends. This literature is essentially critical of punishment. Marxists deny not only the justness of, but also the conventional justifications given for, legal punishment.[133] The Marxists we shall consider are radical critics—they stand outside of the practice.
[133] Marx scholars tend to distinguish Marxists from Marxians, the latter being more or less faithful to Marx's texts, the former diverging in significant ways, to the point even of vulgarizing Marx. Because I am not concerned, here, with how faithful to Marx's texts these radical critics are, I shall be content calling them "Marxists." On the distinction, see Paul Thomas, "Marx's Reception: Then and Now," in Terrell Carver, ed., Cambridge Companion to Philosophy: Karl Marx (Cambridge: Cambridge University Press, forthcoming).
In an article written for the New York Daily Tribune on capital punishment, Marx makes clear enough his understanding of the practice of legal punishment as a whole:
Plainly speaking, and dispensing with all paraphrases, punishment is nothing but a means of society to defend itself against the infraction of its vital conditions, whatever may be their character. Now, what a state of society is that which knows of no better instrument for its own defense than the hangman, and which proclaims through the "leading journal of the world" [The Times ] its own brutality as eternal law?[134]
In this passage Marx is making a claim and a judgment. The judgment is that punishment is brutal. The claim Marx makes is the core claim of radical criminologists: that punishment is an instrument used by society to defend itself so that it may maintain itself—punishment is useful in preserving society. What Marx barely hints at here, but which is central to the Marxist argument, is that it is precisely because of its use that punishment is unjust.
The Marxist (to generalize) understands capitalist society to be divided between two classes, the property-owning bourgeoisie and the propertyless proletariat. The state, with its legal and political apparatus, claims to represent the interests of all members of society, but in fact it allows the property-owning class to perpetuate its unjust domination over the propertyless. A typical version of the Marxist argument goes like this:
The legal system is an apparatus that is created to secure the interests of the dominant class. Contrary to conventional belief, law is a tool of the ruling class. The legal system provides the mechanism for the forceful and violent control of the rest of the population. In the course of the battle, the agents of the law serve as the military
[134] Karl Marx, "Capital Punishment," in New York Daily Tribune , February 18, 1853, in Karl Marx and Friedrich Engels, Gesamtausgabe (MEGA) (Berlin: Dietz, 1984), vol. 12, pp. 25–26.
force for the protection of domestic order. Hence, the state and its accompanying legal system reflect and serve the needs of the ruling class. The primary interest of the ruling class is to preserve the existing capitalist order…. This is accomplished ultimately by means of the legal system.[135]
Radical criminologists see criminal law and law enforcement as useful, but only to the powerful interests and dominant classes of society.[136] They see in crime a political act:
When we say that all inmates are political prisoners, we are not asserting that all criminal acts are deliberate, selfconscious acts of rebellion against an unjust authority. In fact, the overwhelming majority of inmates we saw are doing time for narrow, selfish acts such as stealing, breaking and entering, and fighting. Nevertheless, their incarceration is political since it is the end-product of decisions to treat some social harms as deserving of penal sanctions and others as not—with little regard to the actual extent of social damage.[137]
This passage indicates a more refined Marxism that avoids explaining every aspect of the criminal justice system by class analysis. Not all Marxist criminologists hold that all law serves the interests only of powerful elites, or that the state is nothing
[135] Richard Quinney, "Crime Control in Capitalist Society," in Ian Taylor, Paul Walton, and Jock Young, eds., Critical Criminology (London: Routledge and Kegan Paul, 1975), pp. 192–93, 195.
[136] Cf. Barry Krisberg, Power and Privilege: Toward a New Criminology (Englewood Cliffs, N.J.: Prentice-Hall, 1975); Richard Quinney, The Social Reality of Crime (Boston: Little, Brown, 1970); William Chambliss and Robert Seidman, Law, Order, and Power (Reading, Mass.: Addison-Wesley, 1971). For a bibliography see David F. Greenberg, ed., Crime and Capitalism: Readings in Marxist Criminology (Palo Alto: Mayfield Publishing, 1981).
[137] Joan Smith and William Fried, The Uses of the American Prison: Political Theory and Penal Practice (Lexington: Lexington Books, 1974), cited in Greenberg, ed., Crime and Capitalism , pp. 8–9. In chapter 4 I shall consider in detail the concept of political crime.
but an instrument of a cohesive ruling class. Some explicitly deny such a view, arguing that it would be a mistake to think
that all laws represent the interests of persons in power at the expense of persons less influential. In many cases there is no conflict whatsoever between those in power and those not. For most crimes against the person, such as murder, assault, and rape, there is consensus throughout society as to the desirability of imposing legal sanctions for persons who commit these acts.[138]
More refined Marxists interpret the practice of legal punishment in a capitalist society as on the whole a tool of oppression used by one class against another.
All Marxists see the criminal laws punishment enforces as serving to protect the system of private property essential to capitalism:
Crime is a direct or indirect assault on the interests of private property in a bourgeois society, thus on the core of capitalist exploitation and class domination of the bourgeoisie.[139]
Basically, that is to say from the purely sociological standpoint, the bourgeoisie maintains its class rule and suppresses the exploited classes by means of its system of criminal law.[140]
Some Marxists emphasize that the penal system is not merely a bourgeois phenomenon, but reflects class interests whatever they may be. Pashukanis, for example, writes:
[138] William Chambliss, Crime and Legal Process (New York: McGraw-Hill, 1969), p. 10, cited in Greenberg, ed., Crime and Capitalism , p. 29, note 27.
[139] Andrej A. Piontkowski, Hegels Lehre über Staat und Recht und seine Strafrechtstheorie , trans. from the Russian by Anna Neuland (Berlin: VEB Deutscher Zentralverlag, 1960), pp. 157–58.
[140] Evgeny B. Pashukanis, Law and Marxism , trans. Barbara Einhorn (1929; reprinted London: Ink Links, 1978), p. 173.
Every historically given system of penal policy bears the imprint of the class interests of that class which instigated it. The feudal lord had intractable peasants and townspeople who opposed his power executed. The confederate cities hung the robber knights and destroyed their strongholds. In the Middle Ages, every person who tried to follow a trade without being a member of the guild was thought to be a law-breaker.[141]
The particular features of the penal system in capitalist society reflect that society's class structure. Pashukanis argues that the emphasis in our penal system on an individual's intentions and our use of prison sentences to make punishment commensurable with the crime are both bourgeois phenomena. "Primitive" penal laws, argues Pashukanis, don't recognize the requirement of mens rea (intent) for criminal liability:
If an animal from a herd of sheep, cattle or horses–so it says in a description of the customs of the [present-day] Ossetians—knocks a stone down from the mountain, and this stone injures or kills someone passing by, then the relatives of the injured or dead person pursue the owner of the animal with their blood vengeance—just as though it were a premeditated act of murder.[142]
The notion of individual guilt "corresponds to the radical individualism of bourgeois society."[143] Pashukanis argues also that the idea of punishment as an "equivalence" for the crime is a product of a thought-structure distinctly bourgeois:
Deprivation of freedom, for a period stipulated in the court sentence, is the specific form in which modern, that is to say bourgeois-capitalist, criminal law embodies the principle of equivalent recompense. This form is unconsciously yet deeply linked with the conception of man in the abstract, and abstract human labour measurable in time. It is no coincidence that this form of punishment
[141] Ibid., p. 174.
[142] Ibid., p. 178, note 19.
[143] Ibid., p. 178.
became established precisely in the 19th century, and was considered natural…. Prisons and dungeons did exist in ancient times and in the Middle Ages too…. But people were usually held there until their death, or until they bought themselves free. For it to be possible for the idea to emerge that one could make recompense for an offense with a piece of abstract freedom determined in advance, it was necessary for all concrete forms of social wealth to be reduced to the most abstract and simple form, to human labour measured in time.[144]
Pashukanis, in pointing to how particular aspects of modern penal practice reflect the modern relations of the means of production, expands on a point Marx and Engels had made in arguing that crime in a capitalist society is itself a creation of bourgeois society. In his Tribune article Marx writes,
lt is not so much the particular political institutions of a country as the fundamental conditions of modern bourgeois society in general, which produce an average amount of crime in a given national fraction of society.
Engels draws the conclusion that without bourgeois society there would be no crime, hence no need for punishment:
Crimes against property cease of their own accord where everyone receives what he needs to satisfy his natural and his spiritual urges, where social gradations and distinctions cease to exist. Justice concerned with criminal cases ceases of itself … conflicts can then be only rare exceptions, whereas they are now the natural result of general hostility.[145]
Although some Marxists see themselves as only explaining the emergence and significance of punishment in a capitalist
[144] Ibid., pp. 180–81.
[145] Engels, "Speech in Elberfeld," February 8, 1845, in Marx and Engels, Collected Works , 44 vols. (London: Lawrence and Wishart, 1975), vol. 4, pp. 248–49. Cf. Pashukanis, Law and Marxism , p. 175: "[I]t is very doubtful whether [with the complete disappearance of classes] there will be any necessity at all for a penal system."
society, most radical criminologists judge the practice of legal punishment to be unjust. The law that is enforced is unjust, for it serves to protect only the ruling class, and the punishment unleashed to enforce laws upholding unjust property relations is unjust as well:
There is something perverse in applying [retributive] principles that presuppose a sense of community in a society which is structured to destroy genuine community…. Criminals typically are not members of a shared community of values with their jailers, they suffer from what Marx calls alienation.[146]
The Marxist is a skeptic. And his skepticism is of the whole practice. Marxists, in general, are aiming their criticism not at the brutality of punishment per se, as Marx himself does in his article on capital punishment, but, rather, at the whole practice of legal punishment. Although some with a Marxist bent challenge the selective enforcement by police of criminal laws that result in mainly the poor going to jail, or challenge particular vagrancy laws as blatant examples of law serving the interests of property owners,[147] on the whole the Marxist is attacking not particular laws but the whole practice of legal punishment under capitalism, and beyond this, the whole structure of capitalist society. For Pashukanis, the overthrow of the "legal form"—the whole set of assumptions about legal personality, individual guilt, and commensurability that underlie modern penal practice—depends on "transcending the framework of bourgeois society, but also on a radical emancipation
[146] Jeffrie Murphy, "Marxism and Retribution," Philosophy and Public Affairs , vol. 2, no. 3 (Spring 1973), pp. 239–40.
[147] For example, the New York Times , November 4, 1988, reported that in response to the problem of homelessness, the police force of the city of Miami has proposed a new law making it a misdemeanor punishable by ten days in jail or a hundred-dollar fine or both to sleep, cook, bathe, or urinate on a public right of way, which includes sidewalks and parks. This proposal emerged partly because downtown shopowners say they are tired of having potential customers scared away by street people.
from all its remnants."[148] Radical criminology is indeed radical: it attacks the practice at its roots. The Marxist thinks our practices are bad through and through, and criticizes them from the outside. In contrast, the immanent critic believes that our practices are, on the whole, just, and stands inside a practice to criticize it by principles already there.
Sometimes it seems there is no ground shared between the Marxist critic and the practitioner of legal punishment. Consider the argument made by a group of British Marxist criminologists about mugging. In their view, mugging is a crime constructed by the police, courts, and media as a response to a crisis of legitimacy:
We believe, then, that the nature of the reaction to "mugging" can only be understood in terms of the way society-more especially the ruling-class alliances, the state apparatuses and the media—responded to a deepening economic, political and social crisis.[149]
In this view, the crisis of mugging, created in the late 1960s and early 1970s, was a cloak to mask the political nature ofthe real problem, that of structural and racial inequality.[150] Crime is political revenge by "an excluded black group in a dominant white world."[151] The suggestion that mugging is somehow constructed—not really a wrong, but a political expression of injustice—will be hard for anyone to accept who is at home in the practices of our capitalist society. To such people, the Marxist critic speaks a foreign language. Similarly, radical criminologists tend to dismiss the language spoken by justifiers inside the practice. Like Foucault, some Marxists do not take reformers of the Enlightenment at their word. They see reform as due, not to humanitarian ideals of enlightened
[148] Pashukanis, Law and Marxism , p. 64.
[149] Stuart Hall, Chas Critcher, Tony Jefferson, John Clarke, and Brian Roberts, Policing the Crisis: Mugging, the State, and Law and Order (London: Macmillan Press, 1978), p. 306; cf. pp. viii, 177, 216–17. Cf. my discussion in chapter 1, section 1.
[150] Ibid., pp. 118–19.
[151] Ibid., p. 359.
individuals, but to pressure from capitalists who seek to protect their property.[152] They are skeptical of the motives of reformers, and this skepticism reflects a skepticism of the whole practice:
Liberal reformism in criminology supports the extension of Welfare State capitalism and gradualist programmes of amelioration, whilst rejecting radical and violent forms of social and political change…. This kind of reformism has helped to create probation and parole, the juvenile court system, reformations and half-way houses, the indeterminate sentence, adjustment and diagnostic centres, public defenders, youth service bureaus and many other "reforms" which have served to strengthen the power of the State over the poor, third-world communities, and youth.[153]
Another well-known example of a Marxist account imputes "underlying motives" to past justifiers, who are therefore not taken at their word. Otto Kirchheimer and Georg Rusche argue that penal methods are determined by basic social relations and that punishment is not a logical consequence of crime but a social phenomenon in its own right, a phenomenon that varies with the productive relations of a society.[154] They explain the reform era by pointing to the need of the bourgeoisie for legal guarantees of their own security against the authorities.[155] The distinctive feature of the theory of Kirchheimer and Rusche is its account of why society inflicts punishment the way that it does. They argue that prior to the growth of prisons, punishment was corporal and cruel because there was no labor shortage and the penal system could be
[152] See Michael Rustigan, "A Reinterpretation of Criminal Law Reform in 19th Century England," in Greenberg, ed., Crime and Capitalism , pp. 255–78.
[153] Tony Platt, "Prospects for a Radical Criminology in the USA," in Taylor, Walton, and Young, eds., Critical Criminology , pp. 95–112.
[154] Otto Kirchheimer and Georg Rusche, Punishment and Social Structure (New York: Russell and Russell, 1939), p. 5.
[155] Ibid., pp. 72–74.
used to prevent too great an increase in population.[156] By the end of the sixteenth century demand for labor had increased and, as a result, the ruling class turned to prison labor.[157] With the industrial revolution and the consequent rise in population and spread of factories, prison labor was no longer competitive, and so imprisonment was no longer justified as a source of labor; and, because crime was rising as a consequence of industrialization, punishment became justified as a means of deterrence—punishment now had to hurt.[158] Implicit in this argument is the notion of "objective justifications" that explain the evolution of the practice apart from the actual justifications given by past justifiers.
What can the practitioner say to such arguments? How would they pass muster at a town meeting about whether to build a new jail? To be sure, there are important differences among the radical criminologists, and I have no doubt distorted or inadequately characterized the subtle views of some by grouping them together with others as "Marxists." But our purpose here is not to catch these subtleties. Rather, it is to see the character of their critical activity, to see whether they give us a theory that is in any sense practical.
The Marxist is not engaged in justifying actions within the practice of legal punishment. He does not help us in the numerous practical decisions we must make every day.
How can Marx help us with our real practical problem? The answer, I think, is that he cannot and obviously does not desire to do so. For Marx would say that we have not focused on what is truly the real problem. And this is changing the basic social relations.[159]
One radical criminologist explains his conception of his activity:
[156] Ibid., p. 20.
[157] Ibid., pp. 25, 29.
[158] Ibid., pp. 95–113.
[159] Murphy, "Marxism and Retribution," p. 242.
Our comprehension of the present, as well as the past, is mystified by a consciousness that only serves to maintain the existing order. Only with a new consciousness—a critical philosophy—can we begin to realize the world of which we are capable … any possibility for a different life will come about only through new ideas that are formed in the course of altering the way we think and the way we live. What is involved here is no less than a whole new way of life. What is necessary is a new beginning—intellectually, spiritually and politically.[160]
The Marxist is not at home in our practice of legal punishment. He calls us to a "new way of life," with "a new beginning." The Marxist is a radical critic. Like the other radical critics, the Marxist smashes our temples. Like some of the others, he does this so that we may build a new home.
We have examined several radical critics who are engaged in the activity of justifying the whole practice of legal punishment and who deny that the practice is justified. Now we must see how we can judge whether they are right.