Translated from Sozialistische Gruppe – Hochschulgruppe Erlangen/Nürnberg

The study of public force 3

Victim dead.
Perpetrator in jail.
Criminal law lives.

If you present a law student who is a bit advanced with the usual type of abbreviated headline in the morning news: “Fatal stabbing – nine years in prison” and ask him whether he thinks that’s okay, he will certainly not take it to mean that the explanation for the everyday acts of violence is up for debate and that it’s doubtful whether incarceration is the right response. He will usually inquire about the details of the trial process and compare the verdict with his knowledge of criminal law. But even students who don’t yet have such knowledge, when their training confronts them with the fact that someone has killed another person or stolen from them or forced them to make love, will see nothing more in this than a subdivision of the law and treat such issues as cases.

This position is not unusual. After all, the acts listed as “murder,” “robbery” and “rape,” i.e. as legal offenses which are morally reprehensible and therefore need to be punished, have long been firmly established in normal consciousness, and that’s why in the above list they have a ring that implies that. For the normal person too, everything in the world is sufficiently clarified by dividing actions into permitted and not permitted – into deeds and misdeeds. But while the common person gives free rein to his sense of justice, the future person of the robe is challenged as an expert whenever things once again get violent between people. For professional reasons, every individual act of violence against life, limb, property, etc., is an occasion – still tentatively theoretical, there’s still credit points – for the law, i.e. state violence, to follow up on. The question of justice is settled for him with the fact that everything has to move strictly within the legal framework, so that the above headline only raises the questions: Procedural error? Wouldn’t eight years have been more appropriate, or perhaps ten, or even “life imprisonment”?

Lessons for a delinquent attitude

“Defending the status of the law” is therefore a business that is as narrow-minded as it is ruthless. The widespread lie that this ideal is supposed to be on the defensive already announces that for law students it it is a given that weakness has no place in it. Criminal law lectures, with their humorous treatment of the subject matter (“Paralyzed grandpa shoots apple-stealing boy out of his apple tree from a wheelchair with a shotgun.” Justifiable “self-defense” or excused by “necessity”?), convey to the legal novice that ultimately nothing in this world can escape assessment by the criminal code, no matter how far-fetched or even literary. Regardless, whether he thinks that harshness is only right or is more inclined to the milder variant of “Papa Gnädig,” [a German TV judge] i.e. he declares the law to be a paragon of humanitarianism because it can also convict people less seriously (with a lesser punishment!), or whether he ultimately prefers to see himself as a lawyer who gets the most out of the law for his clients and thus ensures that the trial proceeds properly – his proximity to the law gives him the certainty of representing a good cause. In quiet hours, the representative of the law probably also likes to imagine that in his (increasingly called on) dedication to the legal system (clearly, human nature is constantly deteriorating!) he is one of the – necessarily always misjudged – benefactors of humankind.

Sanctioning murder and manslaughter

Because where would “we” end up, says the man of the law, if everyone were allowed to commit law-breaking mischief in this society with impunity? He likes to supplement the common dogma “If you do the crime, you do the time” (the popular version of the legal dogma “punishment because the law was broken”) with all kinds of positive effects of the law: The “deterrent effect,” “indemnification,” and “rehabilitation” of the offender. The distinct contention in this, that the justice system and criminal law are a means against murder and manslaughter, stubbornly persists not only among lawyers, although the truism that the two always exist side by side and belong together – the crime and its codification in criminal law – refutes this. For a lawyer, the connection between the two is the most self-evident thing in the world; he is in the habit of parading it around as eternally valid wisdom in Latin form – nullum crimen sine lege [“no crime without law”]. The penal code, which he has procured in the certainty that the legal sanctioning of all possible violations within the daily life it regulates does not make his profession superfluous, pronounces in every § the opposite of the illusions associated with it and are also of only secondary importance. Every offense covered by criminal law is based on the fact that the incriminated act is committed on an ongoing basis. The penal code summarizes in concise form what is customary in the way people deal with each other in capitalism and in democratic states. It presents a moral portrait of contemporary bourgeois society. Or a kind of department store catalog from which one can see what the state will cost the perpetrator in terms of freedom or property for each offense if he is caught. While normal consciousness might sometimes denounce a crime as “inhuman,” thus refusing to admit that it is part of everyday life, the criminal lawyer by profession considers such moral indignation sentimental: “nothing human is alien to him.” Criminal law is characterized by the certainty that things will go wrong in society, and it will not let that be taken away from it. It has a completely different relationship to crime than to criminals: It does not object to the fact that people are apparently given all kinds of reasons to act against others and their property on a daily basis, and that these reasons are then put into practice. Rather, it merely defines when this is not acceptable to the state and then turns in each individual case against the criminal who is punished for it. Once a case is closed in this way, the judge moves on to the next case. His way of dealing with crime guarantees that he will never be out of a job.

The law, which the sentencing is based on, imposes a prohibition on the offenses covered by it, regardless of the reasons that led someone to violate the law. The old driving instructor’s joke about the gravestone that reads “I had the right of way” also gets an appreciative chuckle in Podunk because everyone knows that a prohibition does not exclude a violation, but rather sanctions it. However, it is by no means a foregone conclusion that there might be something wrong with the prohibition.

The transformation of the will into “criminal intent”

The creation of countless criminal offenses stipulates the public power’s standards for its citizens’ actions and deviations from them, and it authorizes taking them into custody accordingly. In doing so, the legal representatives, true to the letter of the law, draw a strange conclusion about the will, which is quite schematically charged with the fact that it has offended the state and is to be held accountable for it. Legal consideration of the perpetrator’s “motives” is solely a matter of evaluating his intentions and reasons according to the extent to which they can be considered a deliberate violation of the declared will of the state. The “subjective elements of a crime” are examined, again strictly according to the state’s determination, for the extent to which there was a will to commit the crime at all (“determining intent indicates guilt”). Although no one has ever killed someone because he absolutely wanted to break the law, the proof of guilt aims at nothing other than attributing to the defendant a will to break the law as a factor of the act. The trial charges the defendant’s will, whatever his reasons, with a reasonless impulse and ascribes to it a new, reprehensible reason: the intention to violate the state’s statutes. This form of criticism of the will, prescribed by law, leads to the tautological verdict of guilt: he violated the law because he wanted to violate the law. So the punishment is arranged to make the will, thus determined, feel that it has transgressed against the supreme power.

This alternative – willful or not – is the starting point of the finding of justice (which has nothing in common with the finding of truth), i.e. the legally prescribed interpretation of the act by the lawyer and the public prosecutor, the variants of which bode equally poorly for the defendant. Of course, he will prefer denial of his will – in extreme cases – to its appraisal as a paragon of wickedness. Within the framework set by the legal power, he can calculate an advantage for himself here. The public prosecutor ascribes to his will the most criminal character possible in order to have it broken by the legal system. In doing so, he puts on the same moral show as the lawyer who pulls out all the stops to portray his client as a victim of circumstances with no will of his own. Bringing up his – real or invented – life circumstances and his career, which is so appreciated by the participating public, where truth is not important because it is about the effect, is successful when the perpetrator goes e.g. to the loony bin. A nice demonstration that the rule of law can afford to take the offender into account when it subjects him to the law. And if he disappears behind bars for 15 years, he can provide – living – proof of the progress of civilization, which consists in him not being sent to the scaffold. He is also a good figurehead for a society that prides itself on the fact that individual revenge is no longer the order of the day, because it has been replaced by the state’s monopoly on revenge, which forces people’s affairs into the orderly channels of a trial.

“If you do the crime, you do the time” – with best wishes for mankind

The trial transforms the violence that someone has used against others into a violation of the state’s monopoly on violence and demonstrates that the state does not tolerate violations of its laws. This makes it clear that the above-mentioned positive effects that the penal system is supposed to have for society are irrelevant. These calculated pious hopes associated with the penal system are based on the certainty that punishment has nothing to do with the abolition of crime.

Conservative criminal lawyers who, on the one hand, stress straightforwardly that all the talk about the useful effects of punishment merely distracts from the fact that it is a punishment for an injustice, justify their business, on the other hand, by insisting on the “generally preventive” function of punishment. Their stereotypical formula: “If everyone did that” – the absurd idea that (unfortunately) not only a lawyer could come up with, that everyone must have an interest in murdering and raping as much as they can – wants to make people believe that society is being served by a “deterring effect.” This ignores the fact that deterrence does not work at all. No wonder – it assumes that a will that decides to break the law only after a very precise calculation of advantages and disadvantages takes into account the threat of punishment by the state. In reality, the “calculation” is quite different. After all, the will of the good subjects is endowed with quite a bit of “criminal intent” because they are legally excluded by property from many beautiful goods, and because a righteous and law-abiding life for most of them means doing without. The perpetrator is “deterred” by the threat of punishment mainly in the way he makes arrangements for it and, at most, constantly thinks up new methods to trick the more sophisticated methods of investigation.

The inverted world of bourgeois motives

On balance, a closed criminal case shows something like the following: A man is murdered, the family is fatherless, the perpetrator is behind bars for life, his family sinks or swims. While the law enjoys the best of health because it has been restored. Ultimately, all the futzing around of the criminal law was about remedying a violation of the law, and therefore about nothing other than the law itself. That’s public order!

But if ordinary consciousness, and even more so that of the law, is satisfied with the headline mentioned at the beginning because the legal order is functioning, and precisely in the way that, apart from the law, nothing else works out, then this is by no means because of a crazy inclination of the law to work for it’s own sake.

If the law, with the threat of punishment, is indifferent to the individual reasons of the perpetrators in the question of whether or not to punish, this then does not mean that the law is indifferent to the conditions that the legally codified criminal offenses grow out of. By ignoring them, the law expresses the fact that it does not want to touch the foundations of crime, thus nothing other than a basic interest in the circumstances in which force is used between people. The verdict bears witness to the fact that the purposes pursued by the perpetrators with illicit means are socially widely recognized when a hierarchy of motives establish the levels of severity of punishment, i.e. when their relative validity cannot be denied.

With the heat of the moment, the law concedes the sad reality of bourgeois society: it takes a certain amount of willpower to endure the restrictions imposed by others. The calculating will, however, which is otherwise very popular, is considered to be quite evil when it breaks the law. Likewise, money, the thing everybody acknowledges they want and must have, is suddenly considered a “low motive” (greed!) from the point of view of the law, that is, when and because it is not acquired in the recognized way by the property system, by exploiting or allowing oneself to be exploited.

The harshest punishments, however, are meted out to those whose act does not reveal any purpose that indicates the usual forms of pursuing benefits (the presiding judge: “The woman was senselessly (!) beaten to death”); such an offense is radically subsumed under the motive “for the sake of breaking the law,” a motive that only a lawyer could come up with – after all, he always practices the fiction that crimes are committed for the sake of violating the law. Measured by this, the average property delinquent still attests that his act has at least set out from the normal cost-benefit calculation.

Unambiguous justice or penal class levels

The fact that the state makes expedient distinctions in degrees of sentencing sparks endless debates about the justice of the law, in which people express their ideas about what should be punished and how severely. With their obsession with punishment and justice, they accompany and confirm in a layman’s manner the inexorable course of the valid legal order, its principles and socially as well as state-serving distinctions, which provide the standards for the legal expert and the self-evident starting point of criminal law dogma:

“As much as punishment is morally justified only as just retribution – even in the hands of the state – it is not the office of the state to stand up for the realization of justice in the general course of the world, independent of what is necessary for its own existence as a legal community. The state does not punish so that justice may exist in the world, but for the lawfulness of community life . . .” (Welzel, German Criminal Law)

The state therefore does not apply double standards, but always only one: what is useful to it, the guarantor of the world of private property. And for this, it knows that the law is its means of rule. That’s why “bodily harm” as a crime carries severe penalties, that’s why the destruction of health and person in capitalist factories is not found in the criminal code, and – if it exceeds an average amount (and as such is permitted!) – can at most be expected to result in a fine. And in war everything that is otherwise forbidden is commanded in the service of the fatherland (and crime even decreases, as is well known)!

That’s why theft is punished with much harsher penalties and with very different consequences for the person concerned and his or her family than, for example, tax evasion or white collar crime, which involves quite different financial dimensions. Ultimately, the protection of private property from the not insignificant part of those who have none because they produce it under the rule of private property has a different significance for the existence of the legal system than violations of regulated commerce with property by the other part.

Equality before the law therefore includes not only class-specific crimes, but also the different treatment of classes before the judge. A doctor or a scion is not treated in court in the same way as the ordinary guy: He can afford a better lawyer and medical reports, his credibility is less doubted, he is therefore more easily released on bail, and a fine only rarely means ruin for him. When someone like Dominique Strauss-Kahn from a not-at-all criminal milieu actually goes to jail, the whole world celebrates it as a sensation. And it is, except for the lawyer. For him, the Strauss-Kahn case is a case like any other, in which he is interested in the details of the trial . . .

He’s nothing other than the functionary of the law, i.e. of the state power, which is responsible for the establishment, supervision, and ongoing maintenance of class society!