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We would probably be a little hesitant to reduce what Rusche

described and what he experienced to social control.
What is obvious in these historical examples of the European
experience since the state-building process of the Middle Ages,
culminating in the Nazi attempt at a belated intra-European
colonialism and in what has lately, after two short decades of
integration in the 1960/70s, become unavoidable contemporary
reality again is the fact of social exclusion: societies draw limits as to who
belongs, who fulfils the duties and who is entitled to the privileges of a
bona-fide member. States have formally defined rules of citizenship and
ways to acquire it. Foreigners allowed to stay often get the duties but not
the benefits of membership. Bourgeois thinking has at times gone
beyond this and has conceived of the improbable idea of human rights
and of the possibility of belonging to an allencompassing class of
humanity. This idea has, of course, not been realized (outside
humanist drama on the classical stage), but has since constituted a
contradiction to the reality of the nation state, of class society, of patriarchy,
of somemainly educated men of propertybeing more equal than
others. All othersfemales, young people, poor people, uneducated people,
savageswere simply neglected in constructions of mankind, were
assumed to be represented by someone who qualified for full citizenship
and/or had to wait and work for emancipation. At least the labour and the
feminist movements were quite successful in the latter.
The twentieth century is full of reversals of bourgeois emancipation,
full of examples of the dialectic of enlightenment, particularly on the
grounds of a new political category: race. Biological thinking, an
understanding of capitalism in terms of social Darwinism and thus
degeneration on the one, survival of the fittest on the other hand,
opened up scientific ways of thinking about social exclusion: it became
conceiveable to avoid degeneration or even breed a superrace and to
eliminate all persons who might not contribute to this or who might be
detrimental to the process. What we get in this idea is a fatal
combination of the personalizing and structuralizing modes of control
into a legitimation for eliminating certain categories of persons. The new
scientific criminology around 1900 was full of this type of thinking: a
science of social exclusion. Criminology has from this beginning been a
science of social exclusion and therefore connected to biologism, social


Darwinism, racism, but with the rise of fascism in the 1930s it lost
whatever weak ties it also had to a social problemsor the social
question (meaning: fear of the labour movement) approach. It has
remained an at best technocratic field of knowledge, in which soft and
hard technocrats still fight with changing gains and losses.
The functions of crime and punishment in society are many and diverse,
but among these one feature is obvious and cannot be disputed:
punishment entails (graduated forms of) social exclusion. In the
extremes of the death-penalty, transportation and exile it is total
exclusion for ever or at least for a long time. The interior exile of the
prison and similar total institutions is similarly near- total exclusion, even
if the person can be reached by visitors and counsel and

even if it is temporary. Other punishments like bodily harm and pain

(including hard labour to that effect) constitute at least temporary, if not
permanent, exclusion due to honour lost, stigma and physical or psychic
crippling. Fines can be seen as the mildest form of social exclusion: they
take away (some of) the means of participation. Here we also have the
most immediate and material effects of punishment, while those we could
identify on the lower levels tend to be immaterial and ideological.
Thus: Punishment is social exclusion.
Perhaps we can, for the time being, take this to be the societal
function of punishment: to legitimate (partial and temporary) social
exclusion. Next we have to turn this around and again ask what other
forms of social exclusion we find. Again there are many forms of social
exclusion and punishment is neither the most important nor the most
frequent. But it has special and strategic importance: it incorporates and
exemplifies the logic of social exclusion for a particularly legitimate case.
This logic is twofold: there is internalizing social exclusion which
produces a pariah population which is useful in exactly this position,
and there is externalizing social exclusion of persons and populations that
are redundant and expendable.
Internalizing social exclusion
In a capitalist social formation it is the alienation of being typed
according to commodity characteristics, the central commodity being labourpower, that forms the core dimension of social exclusion. Capitalist
development is a constant struggle for a supply of cheap and powerless
labour on the one hand and coalitions to regulate competition for jobs on
the other. Under conditions in which labour markets are being augmented
by geographical widening and other measures to ensure the existence of a
reserve army the complicated coalitions of factions of labour and capital
formed in attempts to regulate this labour market and positions in it have the
consequence of excluding non-participants. The poor and the
redundant fall out of all of these.18 There has always been a shadoweconomy from and in which this part of the population has to live, part of
which consists in providing cheap and otherwise unavailable labour and
services (like drugs, prostitution, pornos, smuggling, but also cheap

housework, bricklaying, electrical installations and other skilled jobs) for the
legitimate population. Some of this, conducted by small operators, is
understood and treated as crime.19 The international organizers and
supporters of this production and distribution of commodities and services
are mostly members of legitimate society, often from the very top of the
economy and state, especially the states armed and secret
It is poverty and the fact of being a recent immigrant (including
internal migration) that easily positions people as having to offer their
labour for dirty work and at a sub-standard price. The important point is
that the demand comes

from the legitimate part of society: clients, customers and employers

can be found in all strata and positions. This is what organized crime is
about, which may be more or less ghettoized or integrated into the
whole of the economy. It has been argued (Naylor 1996) that recently
Western economies have increasingly blurred this distinction between
legitimate and underground enterprise, not least helped by the enormous
differences in living standards that have become exploitable in Europe.
Punishment helps just a little in recruiting people into this pariah sector of
society and to reproduce it. But it is only auxiliary to ordinary poverty and lack
of comparable legal opportunities. And it does not reach the customers,
except black sheep under exceptional conditions. The swelling discourse of
organized crime is interesting here in that it is about what constitutes
legitimate business, what are opportunities that can be grasped by an
honest businessman and what are the limits to greed in a newly liberalized
economy. It is interesting that the representation of morality in the workplace,
usually the domain of criminal law, is increasingly complemented by a
discourse on morality in business enterprise. This points to a conflict between
the state and the economy, that has just been unfettered by the state, over
the spoils: will the gains all be privatized, or will some come back as
taxes, or will it just be costs (in terms of unemployment and welfare
expenditure) that will come back?
Externalizing social exclusion
The function of externalizing social exclusion is routinely fulfilled by
the institution of citizenship and the legal as well as factual limits to
immigration. It is also routinely fulfilled by differential living and working
conditions: the poor not only pay more, they also the earlier.20 It becomes
conspicuous only when it is done by an (economic and political)
administration. Punishment is the most explicit case of this.
From an administration and planning point of view people are useful
or a problem through their number or through needed or problematic
qualifications like labour power or consumption power or capacity to
withhold needed contributions (as in a strike), capacity to disrupt order (as
in riots), their status as voter, recruit, or their qualification for marriage,
partnership or parenthood. Sometimes people are categorized as

expendable, burdensome or dangerous. In a highly administered society

many decisions depend on information about the distribution of these and
similar characteristics and the assumed need for a certain amount of
them (and accordingly number of their bearers). Thus, the categories
according to which people are sorted and the depersonalized thinking about
persons as bearers of a propertyindispensable pre-requisites for
externalizing social exclusionare all there.
What is added by punishment is the legitimation for the state and
even the duty of the state to exclude the bearers of certain properties for
the common good. Exclusion by crime and punishment has the singular
feature of being deserved and therefore being morally justified. The pattern
produced this way is a right to

be here on the condition of proper conduct. Failure to meet this requirement

makes the person liable to be excludedby the proper authorities only, of
course, but why not do the job for them if they are too slow or hindered by
mere technicalities? Externalizing social exclusion by administrative means
and on a numerically grand scale is never routine. It is always a political and
social disaster of terror or a terror regime. Historical examples seem to
show that it can only be upheld for any prolonged time when it is part of a
war or can be coached in terms of war. The enemy and criminal terms
become interchangeable in war propaganda as well as law-and-order talk
(Duster 1971; Keen 1986). This works both ways: routine social
exclusion by crime and punishment gains legitimacy by being declared to
be a form of war and the possibility of exceptional large-scale social
exclusion is held alive by the model of deserved social exclusion in
punishment. To make this connection between punishment and social
exclusion more plausible without having to go into the detailed historical
studies that this approach
would call for, let me just mention two points:

There is a lot of structural similarity between war propaganda and lawand- order talk.
There is the undeniable fact that the instruments of punishment have
also been applied in large-scale purges, even genocides.

Law-and-order talk does not often go to the same de-humanizing

extremes as war-propaganda but it uses an analogous polarization into
we and them. This has the required effect of forming a homogeneous
whole to which we belong. It is all the easier if a category for this does
already exista national identification, a racial one like Aryan, or moralpolitical ones like honest worker or solid citizen. But it also works the
other way around: a common enemy forms us into a whole, even if there
is nothing more in common.21
Law-and-order talk devalues and dehumanizes persons, not actions or
structures, as does war propaganda. The enemy persons are dangerous
and despicable by nature (or by unchangeable cultural tradition). The
definition of the enemy as well as the criminal has an affinity to natural
categories, as gender, age group or ethnic identification have under normal

circumstances. (Since we try to reform criminals we have a new category:

the persistent offender.)
Law-and-order talk like war propaganda uses the patriarchal motive of
protection of innocent children and women. The enemy as well as the
criminal are constructed as a threat to masculinity via children and
women. The word innocent that is routinely used in this context,22 is quite
an interesting indicator because it implies we would see things differently
had these victims not been innocent, had they been guilty. This,
incidentally, is exactly the use to which this term was put in Antisemitism
and by the Nazis: they were made guilty and deserving the treatment they
There is one element in war propaganda that has long been absent
from the crime-discourse: paranoia. War propaganda cannot be proved
wrong: if the enemy

cannot be seen that is just proof of how cunning they are. If a particular
exemplar turns out to be fair and nice, he or she is an exception or is
undermining our defences. War propaganda also knows of covert actions,
subversives and useful idiots and wants us to be distrustful of everyone:
evil is everywhere. To the author, it is just a little bit disquieting that very
similar expressions of such thinking pop up again and again in law-andorder talk.
As to the second point we can just stay in the twentieth century to
note the simple historical fact that the same instruments that were
developed for state punishmentlegal exclusion from citizen rights,
confiscation of property, transportation, incarceration, forced labour, death
penaltywere also used in outright and open social exclusion- and
extermination-programmes in Nazi Germany and elsewhere. All this was
done to categories of people who were defined in terms of race,
incorrigibility or (political or common) criminality (or more than one of
these)and the people so defined often met in the same concentration
Fascinating fantasiesharsh realities
It seems we have to realize that in the institution of crime and
punishment the logic of deserved administrative social exclusion is
kept alive and so are the principal instruments thatunder extraordinary
conditionscan also be used in large-scale social exclusion programmes.
There is also a strong connection between warfare/the military arm of the
states monopoly of force and punishment/the internalizing exclusion arm of
that monopoly.23
We can now comprehensively identify the functions crime and
punishment has in the mode of domination:
It legitimizes and executes social exclusion, it aspires to controlling
morality, it is a specific form of regulating conflicts. But then, on all these
levels, the contribution to actual social exclusion, social control and
conflict management is minimal statistically compared to the basic
mechanisms of the labour market, discipline and patriarchy in economic
terms. These substantively effective social mechanisms go largely unnoticed
in normal times, whereas the small and insignificant sector of crime and

punishment catches our attention and our fantasies, feeds a great part of
the culture industryand is in fact fascinating and satisfying for the
consumer. Most crime and punishment circulating in society does so as
stories and action movies. Their genres can be correlated to our three levels
again: there are stories of getting into trouble and out again24 at the
interpersonal level, domination challenged and enforced on the
organizational level and belonging and dropping out on the societal.
These fantasies are fascinating because they play on the basic motives of
people acting in societies, not least on their masculinity/femininity, their
rebellious as well as their authoritarian desires. Probably it is these
harmless fantasies by which the function of crime and punishment,
which materially is not very important for the mode of domination, is kept
intact and alive. What begins so

harmlessly ends quite dangerously in keeping intact the logic and the
instruments of social exclusion, which, under conditions that are not all that
unlikely, are put to use in the historical disasters of large-scale social
The expression crime and punishment represents a significant
coupling together of ideas, functions and institutions. This significance
becomes frightening when we consider how easily they are mobilized
toward warlike ends. In normal times, crime and punishment may be
largely ideologically constructedbut this remains ideology with human
Enlarged manuscript of the lecture given in the opening session of
the ESRC conference, Manchester, September, 1996. Thanks to Ian
Taylor and Bill Chambliss for help with the revision.
The paper is also a second part to my 1997 Fin-de-sicle
criminology Theoretical Criminology 1(1): 111129. As a third part I
have sincein co-operation with Helga Cremer-Schferdeveloped
further the approach presented here. The changing fates of state
punishment and criminology (as the mostly all-too-willing ideological part of
that apparatus) in this century can be described as integration and
disintegration of two institutions: crime and punishment and weakness
and care. This further paper will be published in Kriminologisches
2 Taking up Foucaults lead this means detailed regulation of co-ordinated
actions and movements, invented and transported through the
centuries in the monastery, later applied to other total institutions,
including the factory settlement of early capitalism, eventually
generalized to a self-monitored reliability in cycles of routines that does
not need the corset of constant outside surveillance any more (Treiber
and Steinert 1980; Steinert 1993).
3 The core of this is household production dominated by an older
male who has to procreate, provide and protect, and for this uses and
regulates the non-wage labour of the other household members. The
positions, power relations and (self)definitions so established certainly
tranfers to other situations and have consequences for them.

Psychologically this has been constructed by Freud as brothers-horde,

sociologically the commune, the subculture as well as the interest
group are examples which have been widely studied (Schibel 1985).
These are social organizations in which this type of solidarity
becomes dominant, but it is also a dimension of other social forms.
5 Using materials of a contemporary and historical kind, mainly from
everyday problem- solving I have myself done exercises of this kind
in several research-projects and publications, among them Steinert
(1979;1985), Hanak et al. (1989).
6 Surprisingly the lead long ago provided by Garfinkel (1956) has not
been followed up as it could have been. His description of public
degradation can be generalized to the insight that the moral reaction
needs the successful scandalization of an event and a person, which
again demands a relevant public (and the appointed state agency) to be
pulled to ones sidewhich is an all-or-nothing, win-or-lose
undertaking, and accordingly risky and time-consuming with doubtful
pragmatic gains.
7 Charles Tilly (1990) has described European state-building as the
outcome of warfare and the need to extort the means for that from
the population. In his paper of 1985, based on the same material,
he is even more explicit: he characterizes the state as organized
crime and protection racket. For other not quite as comprehensive but
more detailed recent studies see Bartlett (1994), Gay (1993). The Elias
(1939) model

of a process of civilization does not seem to hold: dialectic of

enlightenment may be more appropriate. Interesting examples of a
reformulation of what civilization may mean in the light of the
experience of the twentieth century are Breuer (1994) and
Reemtsma (1994). My own reformulation is derived from military history:
what Elias (mis)understands as a process of civilization of violence
was the simple shift from societies dominated by warriors and thus
upper-class violence to societies in which the lower classes were made
to do the dirty work of violence.
8 This position was developed in critical debates about Rusche and
Kirchheimer (1938) and Foucault (1975). See Steinert (1981b, 1983,
1986, 1991), Steinert and Treiber (1978), Treiber and Steinert (1980),
including further references.
9 For the distinction between reactive and pro-active social control see Hess
10 See Abel 1991; Schumann et al. 1987; Schumann 1989 amongst
others. The assumption that under normal conditions the number of
people processed is not big enough to be of material consequence is
just one, although an important, part of the argument. This has to be
modified: the present development of criminal policy in the United
States seems to suggest that it is possible to process enormous
numbers through the apparatuses of punishment even under a fairly
democratic regime. If this attack of control is sufficiently concentrated
on a particular population, such as Afro-American young males, it will
have some very real impact on this sub-culture. Cf. Christie (1993),
Donziger (1996).
11 Althussers (1970) concept with its distinction of a (repressive) state
apparatus (government, administration, army, police, justice,
punishment, etc.) and many ideological state apparatuses is used
here with the understanding that repression and ideology are two
aspects of any institution, that some seemingly repressive
apparatuses are in fact ideologicaland that these two aspects
cannot be easily separated anyway.
12 This is certainly not new, but goes from fairy tales through high literature
to todays TV-seriesand here in unprecedented numbers. See for

instance Armstrong and Tennenhouse (1989), Lderssen and Seibert

(1978), Mller-Dietz (1990), Schnert (1983;1991), Steinert (1978).
13 This other is, of course, not a slip of the pen (or the keystroke), but
acknowledges that these emotions are deeply patriarchalwhich does
not at all preclude that they are often shared by female or
subordinate male members within this mode of domination.
14 For a detailed analysis of this position and the patriarchal mode of
domination using the example of Clint Eastwoods five Dirty Harrymovies see Steinert (1996). The classical patriarchal genre in film, of
course, is the Western with its central theme of community building by
mutual acknowledgement of patriarchal (small) property- owners. As
long as the genre was intact (as in Shane) they were the heroes, not
the sheriff nor the lone rider, who were only instrumental in helping to
put things right in the community, but then had to go. It is only in its late
and critical forms, particularly in its European (Spaghetti) variant, that
the Western lost that motive of community building and put the lone
rider into the foreground.
15 I have taken Barrington Moores (1978) concept of an implicit social
contract and adapted it to describe changing requirements for labour
qualifications in phases of the capitalist development with different
strategies of capital reproduction. See Steinert (1981a; 1984), CremerSchfer and Steinert (1986).
16 For strong arguments to the contrary see Box (1983); Chambliss (1978).
17 This is not only true for the damages incurred through the peaceful
operation of hazardous production, but even for the classical field of
steet crime where efficient prevention has to set in long before any
questions of punishment arise and where








the latter often is a cheap way out of doing what could be effective.
See Steinert (1992, 1995a, b).
Jordan (1996) has constructed an interesting and sophisticated
politico-economic theory of social exclusion from assumptions about
the formation and effects of such clubs.
Another advantage is that these people without social bonds and
connections can be used for purposes of domination, partly for the
dirty work necessary, but also for positions that have to be trusted
(Coser 1974).
See Caplovitz (1963) on the first point, Wilkinson (1996) as a
summary of findings as well as presentation of original comparative
material on the second.
National stereotypes seem to be very dependent on images formed in
wars and in war propaganda, even decades after the former enemies
have become allies. One example is the Western image of Japan as
analysed by Littlewood (1996) from literary and popular culture sources.
It is quite obvious that the national stereotype of Germany is still heavily
loaded by the Nazi past. Interestingly (and counter-factually) Austria
has long managed to keep out of that shadow.
A recent example that I happened to come across is provided by the
historian Hans Mommsen (1996) who, in the first paragraph of his
essay, speaks of the systematic liquidation of millions of innocent
human beings, primarily Jews (my translation).
This, by the way, leads to the interesting conclusion that the third
variety of the state monopoly of forcethe police with its task of
internal peace-keeping and disarmamentis actually the most
civilized of the three. It is not out to inflict pain like punishment and not
aimed at the unregulated killing and destruction of warfare.
This is one of the descriptions of what classical Hollywood drama was
about as well as the basic dimension of everyday stories about crime
and other troubles.

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Zugleich eine Analyse von Dirty Harry und anderen Clint Eastwood
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