The Logic of Punishment

December 2, 2013


The logic of punishment in democratic states

Crime pays – especially in the public debate. These days, almost everybody seems to be concerned with how best to fight crime. While there are divergent approaches, many believe in the need for punishment and for the state to use force (where would we be without the protection of private property, freedom and so on?). Even if some would admit that harsher punishment does not help the situation and that harm is not necessarily undone or compensated, the necessity for the state to punish in order for a society to work isn’t even an issue. We question the core assumption in this: that criminal law is made for the benefit of those subjected to it.

Breaking the law and bourgeois order belong together

Private property is the institution regarded as safeguarding secure access to ‘things’. But, in fact, it mainly excludes people from the things they need, i.e. from anything and everything they do not own. This exclusion time and again gives rise to situations where people violate property law, simply to be able to satisfy their material interests. It is a daily habit to dodge the fare, to evade taxes or to cheat to get just a little more out of benefits. These examples of crime show that most people’s lives, even in successful capitalist states, are not ones in which needs, wants or desires are provided for. Instead, people break the law to satisfy them. Moreover, in a society based on its members’ pursuit of economic success in competition against each other, it is no surprise that the rules set to maintain this competition are constantly broken. So, while not all forms of crime result from the dependency on property, most crime only exists because of the pursuit of economic success in competition with and against each other. And it is this regular production of crime that makes a penalty system in bourgeois societies imperative.

No crime without law

It is also public opinion that by means of the (criminal) law the state simply reacts to breaches of interest that happen all the time, in every society. However, it is the state which provides the conditions for these breaches in the first place. The right of ownership – granted by the state – forces everyone to pursue success in the capitalist economy by means of their property against the competition. It is the state itself which brings about the material reasons for mass breach of the law.

Put differently, public opinion and bourgeois law assume that breaches of interest inevitably exist in society. However, antagonistic interests on a systematic basis only exist because of the state and its law. No crime without law is true in another sense. A crime is that which the state defines as such. The standard is not whether someone else is negatively affected (e.g. sacking people or shooting enemy combatants in war are not crimes) or not (e.g. prohibition) but simply what interests the state considers it necessary to protect (inviolability of property and person).

The state’s demand against its subjects

The state is aware that competing interests characterise the social and, in particular, economic life of its subjects, within the conditions it asserts. Through its superior force and armed with the law, the state organises that the pursuit of these antagonistic interests lead to overall national economic growth, or at least do not present a problem to it. It does not necessarily care for the success of a particular citizen, but rather that the motley all-against-all produces the economic success it wants; and for that it wants subjugation under its laws.

For the state, this demand is a matter of principle. When one person violates another person’s rights – i.e. violates an interest protected by the state – the state treats that as a criminal offence against itself. The state itself is an affected party as its laws have been broken and punishment is meted out to re-establish the authority of the law over the law breaker. The restoration that criminal law is predominantly concerned with is the restoration of the law, not the restoration of the victim’s well-being. While you might think that smoking a spliff is a victimless crime, the state always considers itself to be the victim when somebody disregards its law.

… and its citizens’ appreciation of the law

People usually refer to the law’s alleged social achievements when it comes to justifying it: punishment limits crime. It is assumed that people refrain from stealing, robbing or assaulting if the penalties are sufficiently high. This justification of the law is made from the standpoint of the existing conditions in a bourgeois society. From this people extrapolate how “the world” would look without the state’s monopolisation of force, without a legal system and punishment to keep fellow citizens at bay.

A picture is painted where no one takes rights seriously any more and chaos and misery ensue. If such thought experiments ‘prove’ anything at all, it is not that punishment is useful. Instead it shows that a reasonably peaceful communal life is not possible without violence in a world of property, competition and socially produced scarcity.

Furthermore, by ‘justifying’ democratic punishment in this way the state is not recognised as responsible for establishing the conditions that give rise to crime but rather as a response to those conditions. A society based on everyone competing against each other and the misery caused by this are thought to be conditions already existing before and outside of the state’s existence.

For a more extensive text on punishment in democratic states we recommend

By Critisticuffs | @critisticuffs


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