Article from Black Flag #222.
This article originated as a workshop given at the Prison Abolition Conference held in London, January 2002.
Article from Black Flag #222.
This article originated as a workshop given at the Prison Abolition Conference held in London, January 2002.
"The communist revolution, by suppressing private property and giving 'to all the same things', will emancipate man [sic] and will bring to life the egalitarian spirit. Then the ideas of justice, which have haunted human heads since the establishment of private property will vanish - the most frightful nightmare which ever tortured sad civilised humanity" (1)
Justice - A Dominant Ideal
Justice is one of the dominant ideas of the society in which we live.
Everyone has a sense of justice and its opposite, injustice. This sense of right and wrong is obviously closely linked with morality. The idea of justice might be summed up as the passion for vengeance coupled with the sentiment of equality. It is an important ideal against which outcomes are measured.
In law a distinction is made between formal justice and concrete justice. Formal justice concerns the mechanism by which decisions are made (the rules of court) whilst concrete justice is more concerned with the end result - the verdict and sentence. It has been suggested that, beyond the defendant in any given case and a few specialists, most people's concern with justice is concrete. In the main people are concerned with the outcome and above all sentence. Did they get their just deserts? For many people this is the meaning of natural justice (although in law the concept of natural justice is concerned with the fairness of the process).
Defining justice has proved harder. The American jurist John Rawls defined justice as that which prevailed in a just society, and a just society as one to which a group of rational but mutually disinterested people would unanimously choose to belong if such a choice were available. He recognised that any such choice is purely hypothetical, and that in practice all human beings are born into a particular society with no option, but suggested the concept of the rational choice as one that could help our understanding of what justice might require. (2)
Those seeking to reform or overthrow capitalism are also swayed by this dominant idea of justice. Indeed, it may be argued that the left holds the value of justice more highly than most.
Some recent examples are:
-- Those killed by the cops (e.g. Justice for Harry Stanley).
-- Victims of police brutality (e.g. Genoa Justice Campaign).
-- Victims of racist murders (e.g. the campaign by the family and friends of Stephen Lawrence for justice).
-- Those imprisoned for crimes that they did not commit (e.g. Justice for Mark Barnsley, a campaign that successfully sought the release of an anarchist revolutionary). (3)
-- Groups campaigning for 'social justice' (e.g. Justice? The publishers of the direct action weekly Schnews (4); the Dockers/Reclaim the Streets March for Social Justice; the Movement for Justice).
-- And, of course, the slogan 'No justice, no peace' is raised on almost every demonstration. (5)
These examples are given not to single them out, but the opposite, to show how widespread is the acceptance of the ideal.
Origins of law
The origins of the concept of justice are to be found in the passion for vengeance and in the custom of the blood feud. Whilst some criminologists have argued that the possibility of further vengeance is excluded when the victim is avenged, the reality is that such vengeance was passed from generation to generation, threatening the very existence of clans and tribes. "Vengeance one hundred years old, still has milk teeth" in the words of an Afghan proverb. (6)
The custom of vengeance is transformed from a purely biological reflex into a juridical institution by being linked with the form of equivalent exchange, exchange according to use values. This then is the principle of equivalent requital. As we find in the bible: "life for life, eye for an eye, tooth for tooth, hand for hand, burning for burning, wound for wound, stripe for stripe". (7) This exchange of equivalents is, notes Pashukanis, the first truly judicial idea predating the concepts of 'justice' and 'law'. (8) In a process arising alongside the direct exchange of commodities arises this direct exchange between offence and retribution. Lefague has termed this Retributive Justice. (9)
Not surprisingly the earliest concepts of justice come from the ancient Greek and Roman worlds. In ancient Greek many legal terms shared a common root with words linked to the division of lands. In Latin there is a common root between contractual and legal terminology. The first memorial of law is the 12 tablets of ancient Rome. Law thus arises alongside the development of property and the commodity. We do not need to look to radical writers to find confirmation of this. Blackstone, who in 1765 at the behest of the Lord Chancellor began the first systematic exposition of the common law, states:
"Simply larciny [theft] then is the 'felonious taking, and carrying away, of the personal goods of another'. This offence certainly commenced then, whenever it was, that the bounds of property, of laws of meum and tuum, were established. How far such an offence can exist in a state of nature, where all things are held in common, is a question which may be resolved with very little difficulty." (10)
With the creation of property, blood feuds become transformed into blood money. From the stand point of Roman law, for example, there was nothing strange in the fact a tardy debtor paid with parts of his body and that the person guilty of bodily harm paid for it with his property. In accordance with this, criminal procedure assumes the character of a commercial transaction.
The Development of Capitalism
Whilst the concept of justice finds its origin in the development of the commodity form, both the commodity form and justice become fully developed with capitalism. We can therefore draw a direct parallel between the rise of wage labour, measured by labour time, and the emergence of the prison system; between the growth of the working class and the creation and expansion of the police and judiciary; between the building of factories and the building of prisons. The domination of commodity production finds its mirror in the domination of the legal system. The dualism of the commodity, with the split between exchange and use values, is echoed in the dualism between subjective and objective law, public and private law, distinctions that only make sense from the point of view of bourgeois society.
It is only with the advent of capitalist society that all the necessary conditions are created for the judicial factor to attain distinctness in social relations. One of the necessary conditions is the idea of equality. This, as Marx has demonstrated, arises from the economic condition of bourgeois society, which found its reflection in the ideas of the Enlightenment. (11) Thus Rawls traces the origin of the idea of justice to Locke, Rousseau and Kant, the theorists of social contract. (12)
"The notion of the rule of law was central to 17th & 18th century Englishman's understanding of what was both special and laudable about their political system. Authorities ... chose to limit themselves in order to acquire greater effectiveness: they traded unmediated power for legitimacy." (13)
Whilst many historians, like those quoted above, focus on the English it was in fact largely Scots such as Smith, Ferguson and Blackstone who, in the 1760's, laid the foundations of the disciplines of sociology, anthropology, economics, history and law. Law represented and codified the rule of a class over society as a whole.
"Criminal justice in this epoch is no longer simply a means for those in power to fill their coffers, but it is a means of merciless and relentless suppression, especially of the peasants fleeing intolerable exploitation by lords of the manner ... of impoverished vagabonds, beggars, and so forth". (14)
Above all, as Peter Linebaugh has demonstrated in his seminal study of crime and civil society in 18th century London, criminal measures were directed at the newly created class of workers, who were unable to afford to live from the fruits of their labour alone yet were often reluctant to work. (15) In this way wages as the only form of income was imposed.
Barbaric forms of corporal and capital punishment were devised to discipline this new class. "The major lesson the gallows were supposed to teach was the absolute, apodictic authority of law; it was a code governing the relationship between state and civil society, and in this respect was to be distinguished from murder or massacre." (16) Adam Smith, grasping the connection between justice and political economy, studied ways of improving the efficiency of such punishments. (17) Criminal justice in the bourgeois state is organised class terror.
Law and Ideology
Law thus reinforces class relations and, ideologically, legitimises them. However law does more than this. As a special body of rules and procedures, it must apply logical criteria with reference to standards of universality and equity. If the law is evidently partial and manifestly unjust it masks nothing, legitimises nothing and won't contribute to class hegemony. (18)
As Marx put it:
"the establishment of the political state and the dissolution of civil society into independent individuals - whose relations with one another depend on law, just as the relations of men in the system of estates an guilds depended on privilege - is accomplished by one and the same act." (19)
Law as a form does not exist in the heads of learned judges alone. It has a parallel, real history, which unfolds not as a set of ideas, but as a specific set of relations which people enter into not by conscious choice, but because the relations of production compel them to. The same necessity that transforms a product of nature into a commodity, transforms a human being into a legal subject. Justice therefore is not simply an abstract ideal, but takes on a concrete reality. (20)
The central role of justice in the rule of capital obviously did not cease with the end of the 18th or 19th centuries. Indeed it has become ever more important. In Blackstone's time theft was divided up into grand theft (which included cattle theft, shop lifting, and pick-pocketing) and petty larceny. A distinction was traditionally made between larceny, embezzlement and false pretences, on the basis of the victim’s degree of involvement in the crime. In the development of modern law these become blurred, into the single concept of theft.
Commodities, without distinction on basis of use values, dominate modern life, so the differences between the varieties of theft become irrelevant, even though the punishments remained largely unchanged. Corporal and capital punishment continued into 20th century Britain and remain in use elsewhere. Indeed the use of capital punishment intensified in the 1970's at the end of the long post-war boom. Peter Linebaugh has pointed to the link between capital punishment, the organised death of living labour, and the punishment of capital, the oppression of the living by dead labour. In Britain one in three adult men have a criminal conviction. The prison population continues to grow.
Exchange remains the basis for punishment. The exchange of a particular punishment for a particular quantity of crime. This is the basis of sentencing tariffs, in which each crime is valued and ascribed a certain worth. Thus white collar fraud is valued at say 6 months, theft around 1 year, robbery about 2 years, GBH roughly 4 years and murder approximately 14 years. We can therefore draw up a table, in which one GBH equals 8 frauds or one murder equals seven robberies etc.
In the same way as money is the universal equivalent, the measure used for commodities, so justice means quantifying crimes according to a theoretical unit of measurement. (21) This developed form of law was termed by Lefrague Distributive justice. (24)
However whilst it is correct to speak in terms of class justice, we should not fall into the trap of believing that there can be justice for our class, a proletarian or communist form of justice. We cannot replace bourgeois law with proletarian law, any more than we can replace capitalist economics with Marxist economics, or the existing state with a workers' state. To try and do so would be to fall into vigilantism. Whilst the desire for revenge may be powerful and understandable, we cannot accept the need for punishment (as opposed to say protection). A society based on scarcity and conflict necessitates a system of justice; a world based on the maxim 'from each according totheir ability, to each according to their needs' lays beyond justice.(25)
1. Quoted in Paul Larfargue, The Origin of the Idea of Justice p188
2. J Rawls A Theory of Justice (Oxford 1972)
3. Whilst completely understandable, the irony of calling for 'justice' in such a situation is obvious. Justice is served for other prisoners by continuing their sentence since they are 'guilty'.
4. Interestingly the campaign following the death at work on the Shoreham docks of Simon Jones, in which Schnews was instrumental, avoided the trap of justice by focusing on the wider question of the form of society which places so little value on the lives of workers.
5. 'No Justice, No Peace' is not a demand but a lament. It is left to a few malcontents to turn it into the demand: 'No Justice, No Police'.
6. Larfargue p166
7. Exodus, XXI.,23, 25 quoted in ibid
8. B. Pashukanis, Law & Marxism, p168
9. Op cit pp 161-177
10. Blackstone Commentaries on the Laws of England 1765, vol IV, p230
11. "The sphere of circulation or commodity exchange, within whose boundaries the sale and purchase of labour-power goes on, is in fact a very Eden of the innate rights of man. It is the exclusive realm of Freedom, Equality, Property and Betham. .... Equality, because each enters into relation with the other, as with a simple owner of commodities, and they exchange equivalent for equivalent." Marx Capital Vol 1 (Penguin 1976) p280
12. J Rawls op cit
13. J Brewer & J Styles An Ungovernable People (Hutchinson 1980) p14
14 B. Pashukanis op cit p173
15 P Linebaugh The London Hanged, Crime and Civil Society in the Eighteenth Century
16 Ibid p 280
17 A Smith The Theory of Moral Sentiments cited in ibid
18 E P Thompson Whigs and Hunters pp259-265
19 K Marx On the Jewish Question quoted in Pashukanis op cit
20 See Pashukanis op cit p 68
21 G Fletcher Rethinking Criminal Law (Brown 1978). Contrast the Larceny Act of 1916 with s1 of the Theft Act 1968
22 Op cit, Introduction
23 See Wildcat (UK) 17, Spring 1994, p41
24 Op cit pp177-189
25 K Marx Critique of the Gotha Programme