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.

Your use of the JSTOR archive indicates your acceptance of JSTOR's Terms and Conditions of Use, available at
http://www.jstor.org/about/terms.html. JSTOR's Terms and Conditions of Use provides, in part, that unless you have obtained
prior permission, you may not download an entire issue of a journal or multiple copies of articles, and you may use content in
the JSTOR archive only for your personal, non-commercial use.

Please contact the publisher regarding any further use of this work. Publisher contact information may be obtained at
http://www.jstor.org/journals/springer.html.

Each copy of any part of a JSTOR transmission must contain the same copyright notice that appears on the screen or printed
page of such transmission.

The JSTOR Archive is a trusted digital repository providing for long-term preservation and access to leading academic
journals and scholarly literature from around the world. The Archive is supported by libraries, scholarly societies, publishers,
and foundations. It is an initiative of JSTOR, a not-for-profit organization with a mission to help the scholarly community take
advantage of advances in technology. For more information regarding JSTOR, please contact support@jstor.org.

http://www.jstor.org
Tue Jan 15 12:02:09 2008
 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 authori-
tarian 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 "super-
stition" 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 fol-
lowing 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.

72 Luigi Ferrajoli and Danilo Zolo

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 indis-
pensable 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 view-
point 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.
Marxism and Criminality 73

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 scholas-
tic 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 over-
throw 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 it-
self 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).
74 Luigi Ferrajoli and Danilo Zolo

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 dissolu-
tion 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; second-
ly, 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.
Marxism and Criminality 75

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 economic-
social conditions are outside the realm of any scientific determina-
tion or prediction.
Nor are attempts to apply those analytical categories belonging
to a Marxian critique of bourgeois economy to both "superstruc-
tural" 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 sociologi-
cal 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 insubordina-
tion 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 discipli-
nary mechanism, the learning of rules by rote, the use of isolation
for re-education in private property values, total control, subjec-
tion to an impersonal, all-seeing power. In this case the assimila-
tion 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.
76 Luigi Ferrajoli and Danilo Zolo

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 crirni-
nological viewpoint, very few of these people can be likened to the
proletariat. They seem to be particularly concerned with "innova-
tory 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 univer-
sity 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.
Marxism and Criminality 77

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 con-
trast, during the course of this century, the number of prosecu-
tions 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. How-
ever 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 prose-
cutions, 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 neo-
capitalist societies as well. It simply means that from the neo-
capitalist 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 penalis-
tic prison structure, is the ideologically stigmatizing use of crimi-
nal 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).
Marxism and CriminaZity 79

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 stigmati-
zation 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 elemen-
tary function in which violent repression of the crime is a symbol-
ic 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 mini-
mal 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'ordina-

mento 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.
80 Luigi Ferrajoli and Danilo Zolo

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 consen-
sual 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 accus-
tomed 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 prison-
ers 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.

82 Luigi Ferrajoli and Danilo Zolo

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 con-
science, of the divinity or of the categorical imperative-26. Besides

l4 Ibid., p p 93-4.

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

p. 133.

26 Ibid.

Marxism and Criminality 83

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 dif-
ficult 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 peda-
gogism. 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 repres-
sive and negative aspect of the entire positive, civilizing activity undertaken
by the state31. [And] the 'prize-giving' activities of individuals and groups

27 Ibid., pp. 257, 258.

Ibid., p. 242.
29 Ibid., p. 246.
30 Ibid., p. 247.
31
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 crimi-

nal 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 pro-
foundly 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 comprehen-

sive theory of deviance and social control based on a re-exarnina-
tion 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.
Marxism and Criminality 85

The first suggestion relates to the structural roots of modern

zriminality. According to the Marxian analysis of bourgeois eco-
nomy, 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 eradi-
cated. 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 forma-
tion, 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 Lumpenproletar-
iat 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.

33 See K. Marx, Capital, (Chicago: Charles H. Kerr and Co., 1919), vol. I, pp.
689-711.
86 Luigi Ferrajoli and Danilo Zolo

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 criminal-
ity (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 stratifi-
cation 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, Lumpen-
proletariat criminality and modern criminality tout court are
identical. Such an assumption represents an arbitrary simplifica-
tion 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 interna-
tional drug and arms market. Secondly, the Marxian perspective
above outlined does not adequately explain certain specific
"superstructural" characteristics of modern social marginality. The
Marxism and Criminality 87

living conditions of modern marginal sectors, their political-

ideological 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 "struc-
tural" 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, Lumpen-
proletariat, 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 "super-
stition" 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 Philoso-
phy 1 (1982), pp. 5-20.
88 Luigi Ferrajoli and Danilo 2010

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 concep-
tion of criminality is t o place the burden of "guilt" and "responsi-
bility" 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.

35See K. Marx, The Holy Family, in K . Marx and F. Engels, Collected

Works, Moscow: Progress Publishers, 1475: "The idea underlying the punish-
ment that Rudolph carried out in blinding the maitre d'kcole - the isolation
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 jurispru-
dence 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
Marxism and Criminality 89

The three aspects in the process of criminalization (the norma-

tive 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 regu-
lations, pollution and food contamination, etc. The process of
criminalization of an ethical and individualizing character is there-
by directed towards a small section of deviants sociologically
qualified in terms of their membership of the lower and mid-
lower classes. By contrast the response to the crimes of the power-
ful and white collar sectors in general is much weaker. This explains
how legal statistics reveal an overwhelming presence of Lumpen-
proletariat 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 accen-

solemnity 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).

90 Luigi Ferrajoli and Danilo Zolo

tuation of the ethical mechanism in penal repression: it simultane-

ously allocates blame t o the individual and strengthens the ideolo-
gy 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 individ-
uality, 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 pros-
pect 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 ethical-
political 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 educa-
tion of individual deviants; it appears to emphasize the need for
intervention at the level of the social "surroundings" and econom-

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

Marxism and Criminality 91

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 assump-
tion of the bourgeois ideological tradition is that of freedom as
freedom of choice and not freedom to adhere, freedom-participa-
tion. 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 recog-
nizes 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
- - - -

39 K. Marx, Grundrisse der Kritik der politischen ~ k o n o m i e (Berlin:

, Dietz
Verlag, 1974), p. 387.
 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 interac-
tion 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 criminolo-
gical research, namely from the labelling theory to functionalist
theories of anomie, from studies of criminal subcultures to psycho-
analytical 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
Marxism and Criminality 93

deviancy of a marginal or Lumpen kind. It consists in the intro-

duction of social guarantees capable of preventing the marginaliza-
tion of the workforce, and the desocialization and cultural dis-
integration 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 exem-
plary 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 super-

structural factors which operate in the genetic processes of mar-
ginal 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).
94 Luigi Ferrajoli and Danilo Zolo

of the lower sections of society; such organization must be capable

of opposing the desocializing mechanism which operates in ad-
vanced industrial societies, and replacing the absence of "sociality"
with new social forms. Thus the first aims of an innovative crimi-
nal 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 apoliti-
cal 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 respon-
sible individual, but rather a matter of socializing guilt and respon-
sibility. The short term policy on the institutional level would
Marxism and Criminality 95

imply a policy directed toward the reduction of penal intervention

so that it could become a secondary and exceptional form of anti-
criminal 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 consid-
ered as administrative infringements, should be punished by sanc-
tions 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 identifi-
cation 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 ex-
clusively 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 expi-
atory 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
96 Luigi Ferrajoli and ~ a n i l oZ O ~ O

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 treat-
ment 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 re-
educative 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 re-
educative or resocializing measures will always contain an authori-
tarian 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,
Marxism and Criminality 97

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 non-
detentive 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 juridi-
cal 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 individ-
ual 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 ten-
sions 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 institu-
tions (nondetentive in nature) that could make possible a real and

41 See on this subject C. Charles and D. Benson, 'Restitution as an Alterna-

tive t o Imprisonment', Detroit College of Law, 1980, pp. 523-98.
98 Luigi Ferrajoli and Danilo Zolo

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 regis-
ters, 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 paradoxical-
ly 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

42 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).
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 deter-
mined 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 punish-
ment, 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 punish-
ment, 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
http://www.jstor.org

LINKED CITATIONS
- Page 1 of 1 -

You have printed the following article:

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

This article references the following linked citations. If you are trying to access articles from an
off-campus location, you may be required to first logon via your library web site to access JSTOR. Please
visit your library's website or contact a librarian to learn about options for remote access to JSTOR.

[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

NOTE: The reference numbering from the original has been maintained in this citation list.