Rational Institutions and their Relation to Crime and Penal Sanction

The institutional chaos of the latter middle Ages-extending well into the fourteenth century-and the steady decline of the ethic of shared responsibility left feudal authority impoverished and impotent to arrest the increasing savagery of interminable feuds, wars, petty violence and brigandage. The vassalage, tied to landed interest, could no longer rely on fealty and tallage from lesser ranks for their political and economic support. Nor could perpetuity of landed wealth be relied upon from the fourteenth century on. Royal revenues and power were drying up as fealty declined, and of necessity royal authority sought revenues elsewhere, if only to raise armies to put down recalcitrants in the realm.

Not all was chaos. Petty merchants throughout Europe, once objects of scorn, had already begun to develop, with their artisans, the institutions of private property, exchange of titles to property in markets growing steadily in the second feudal age, and a labor force freed from feudal ties. Even by the thirteenth century, these merchants had become dedicated to the business of creating opportunities for continued, renewable gains-calling for stern rejection of sentiment and sympathy for any who might lose heavily in trade relations. It called for monklike pursuit of gain. Initially banished, outside the feudal city, these pariahs grew with every decline of feudal institutions, and with them grew the ethic of individual responsibility. In the midst of feudal anomie, this ethic-expressed institutionally in market contracts-finally supplanted the cooperative ethic. it did so with the eventual alliance between European monarchs and the rising merchant class.

The alliance created the formally rational State and citizenship and had direct bearing upon the advent of crime and penal sanction. petty merchants throughout Europe gained fantastic wealth and with it power directly in consequence to the wars and feuds of the landed nobility. such wars, in absence of fealty and tallage, had to be financed from outside the system. War loans, using land as collateral, were made to such nobles by merchants. Lands once held by nobles in perpetuity under laws of primogeniture and entail were regularly mortgaged by both parties in conflict. Every war meant that the land of one of the parties in conflict would fall to the merchant making the loan and not to the winner of the battle. Dobb observed that from the War of Roses onward, the landed wealth of Europe fell in this manner into the hands of merchants like fish into their nets. ³³ As most wealth hd been landed wealth held out of the market by laws of primogeniture and entail, this transfer of land to the merchant class made land a commodity for buying and selling as private property in the interest of profit. Any labor attached to such land under seffdom ws freed from feudal ties to that land, and so were the nobles themselves. human relations underwent profound transformation.

The plight of monarchs in raising revenues became more acute since revenues had come previously from landed nobles all the way up the feudal scale. Now in the hands of merchants, changing hands with every sale, land came to resemble mobile capital. It became clear that the destiny of monarchs was at once the prosperity of merchants. in this way the State cut its bond with family relations. The kinship aspects of the feudal State vanished. Tied to the interest of an entrepreneurial world, authority and power became abstract. In aligning itself with capital and the interest of capital, the State came to guarantee as law both the ethic and the practices which had emerged among merchants prior to the alliance.

The annuity bond arising from personal debts and war loans, the stock certificate, the bill of exchange, the commercial company, the mortgage, trust deeds, and the power of attorney-all were practices of merchants which grew with the collapse of feudal institutions and which became guaranteed in law with the alliance between monarchs and the entrepreneurial class.³⁴ With this alliance the remnants of shared responsibility for gains and losses were by-passed along with the social control value of customary law, kinship as a restraint upon power, and the sentiments of fealty and companionage. Local feudal worlds such as kindreds and medieval cities lost all autonomy and authority as the nation-state emerged. Everywhere cities in Europe came under the power of competing national States as a condition. Weber observed, of perpetual struggle for power in peace and war.

This competitive struggle created the largest opportunities for modern capitalism. The separate States had to compete for mobile capital, which dictated to them the conditions under which it would assist them to power. out of this alliance of the state with capital, dictated by necessity, arose the national citizen class, the bourgeoisie in the modern sense of the word. hence, it is the closed national State which afforded to capitalism its chance for development-and as long as the national state does not give place to a world empire capitalism also will endure.³⁵

Just as the national State came to recognize and guarantee, as well as create, civil laws relating to market relations, private property, labor, imports, exports, tariffs, it likewise came to have full power to create and impose criminal laws which related to the same institutions of capitalism. under the ethic of individual responsibility, any citizen, even one forgiven by his kin or community, could be penally sanctioned as an individual by an abstract. State and without much probability of reprisal against the State on the part of those who had forgiven him. With the advent of the formally rational State, punishment was no longer an act of war. And any violation of criminal law-defined by the State-came to be seen as a harm against the State.

With authority behind the institutions of capitalism, and as the commercial principle became intense and diffused through the commercial and industrial revolutions, criminal law proscribed far more behaviors as crimes than had ever existed even in the second feudal age. in addition to the short list of blood harms, fornication, and adultery which had been dealt with on the shared responsibility basis, the State created new crimes and punishments directly as the institutions of capitalism advanced. Moreover, the older blood harms-including the older forms of justice-became criminal in that State now specifically proscribed them and fixed to them penal sanctions. Thus the State obtained a monopoly over the processing of acts of violence.

Apart from the older harms criminal laws were established primarily for the protection and development of the institutions of capitalism. The reference here is not simply to penal sanctions levied against robbery, theft, burglary, or other violations of private property. It is to penal sanctions which directly controlled the manner in which social structure would develop in cities. it is to penal sanctions which had direct bearing on determining the organization of the division of labor in society and consequently upon the class structure of commercial settlements.

Criminal las strangled the ability of lower classes (those alienated from landed feudal ties who had migrated to cities as 'free labor') to possess tools or capital goods, raw materials, and also, on pain of heavy penal sanction, forbade association with guild masters.³⁶ in short, upward mobility became a crime unless guild masters themselves chose to elevate the status of an artisan. Thus penal sanctions guaranteed by the State, guaranteed a continuous labor force (whether employed or not) and created two classes of citizens-one bound by criminal laws and penal sanctions, and another bound only by non-punitive civil laws. The situation is hardly different today in this respect.³⁷ under the formally rational State, second class citizens are never in position to be governed only by civil laws-they are never, therefore, beyond incrimination.
<sup>_____
33. Maurice Dobb, Studies in the Development of Capitalism (New York: International Publishers, 1963), revised Edition, Ch. V, especially pp. 186-198.
34. Weber. General Economic History, op.cit., pp.247-253 ff.
35. Ibid., p. 249.
36. Rusche and Kirchheimer, o. cit., Chapter II. See reference made to R. H. Tawney and to the latter's support of the above statement (note 19) where the State is described as a class State whose criminal laws protected only the interest of large capitalistic guild masters and held labor captive.
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Cross-cultural Parallels

These historical observations have significant cross-cultural parallels. Whenever we witness a 'third-world' country adopting political and economic systems roughly similar to those under the formally rational State, we find the ethic of shared responsibility for individual conduct giving way to the ethic of individual responsibility for individual conduct. Whenever we see any Western national State engaged in active warfare with ny country governed by the ethic of shared responsibility, we see a State engaged in the savage business of reducing this ethic to that of individual responsibility, and in the transformation of customary institutions to 'rational' institutions founded upon calculable law. This is done either directly, or indirectly through the establishment of puppet regimes on foreign soils. Submission of every individual in a territory-as an individual-to a single power reduces a war of political equals to submission of individuals as individuals and reduces a great many practices of the vanquished to the status of crimes.

The power to pardon under the formally rational State also played an increasing role in the determination of crime and penal sanction as well as a most significant role in the determination of two forms of 'justice' which up to the present time measures the difference between the privileged and the non-privileged in relation to crime and its prosecution. The state acquired the power to pardon because the power to forgive-without-punishment became meaningless in the last days of feudalism and because of a few still stable forms of feudalism yielded that power to emergent States. Thus, replacing a diffused, collective act of forgiveness was the impersonal, concentrated power to pardon invested in a separated political community as an enforceable monopoly. This empowered the State to levy penal sanctions.

It was observed that the power to pardon relative to the rendering of penal sanctions is rarely used, and that penal sanctions coupled wit the meaninglessness of forgiveness locally, undermines the restorative power of society. The reference here was to the use of full pardon. There are, however, partial or qualitative pardons which are implicit in the reduction of corporal punishments to fines, and in some cases eventually to the abolition of fines. This amounts to the gradual abolition of punishment by means of partial pardon. it also means the abolition of crime to which penal sanction was fixed.

Just as the State can manufacture crimes by proscribing specific acts and fixing to them penal sanctions, so can the State abolish a crime by removal of these sanctions. But partial abolition of crime stems from reduction of a given penal sanction from capital or corporeal punishments to fines.

As Rusche and Kirchheimer have already observed, this reduction partially legitimates the behavior to which the fine becomes attached.³⁸ In effect, the fine means the State's willingness to withhold punishment provided that the violator is willing and able to pay the price. It goes without saying that if the fine is a negligible amount in relation to the profit made by violating the law, under capitalism, then it will continue to be violated at no expense to the State. For those who are unable to be violated at no expense to the State. For those who re unable to pay such fines, the prison walls loom large indeed. It is in his sense that the State partially pardons the wealthy their harms against others in society but fails to pardon the poor for the same crimes. It is thus no mere play on words to say that crime is what poor men are in jail for.

Then what is partly legitimate for upper classes becomes totally 'immoral' for lower classes. in either case the State cannot lose. Revenues from wealthy lawbreakers are more than sufficient to offset fiscal costs associated with operating and maintaining prisons-especially when one views what sink holes most prisons are. If such revenues prove inadequate, then the rest is made up by the public tax dollar. If prison maintenance comes wholly through taxes and bond issues, then revenues from fines make up a clear profit for the treasury of the State.

But there is more to this partial pardon, because of a basic ambiguity regarding how to conceive the fine. Is it actually a penal sanction? Is it, to the contrary, a tax levied for the privilege of violating criminal law? Or, is it a price charged by the State for the right or license to violate laws for which only the poor would be imprisoned? In any case, the State either becomes an entrepreneurship which exchanges the right to violate criminal law for a price called a fine-or else it becomes an agency in which the fine is standard fiscal policy very like a tax on the rich and less rich to pay for punishing the poor for having violated criminal laws the State itself created! There is a subtle mechanism here, in that the State is always in a position to proscribe as criminal only those acts which are bound to maximize revenues-if the price is right-and to maximize (or minimize) imprisonment if the price is not right or if it is beyond the ability of people to pay it.

Through manipulations such as these, the State can increase or decrease crime rates at will just as it can create whole new categories of crimes for partial legitimization when revenues are wanting. The central irony-in view of the active role of the State in the manufacture of crime-is that every ivil and criminal law created by the state assumes that only the individual citizen is responsible for the act he performed and for its consequences. Through this legal fiction the State exempts itself from any responsibility for crimes and crime rates and at once exonerates itself from any guilt for having punished any man for a crime the State invented.

This ethic of individual responsibility is a legal fiction and is both socially and psychologically insupportable. It is the central myth of both citizen and State. yet, despite the State's causal role in crime, the myth lives on as an eternal verity among most of the very people the State has punished and 'rehabilitated,' and among those whose lives and fortunes are governed by legally imposed conditions over which such people have little or no control. As long as consensus over the verity of this myth is high, good citizens will continue to ascribe to criminal laws a moral significance, and to this extent the position of the State is strong and secure against any serious threat of a general uprising from among those it governs.

But the consensus changes. The moral value of such laws and sanctions then falls suspect. The fictional character of the theory of individual responsibility becomes clear as noonday, for the very laws thought to have had great moral significance come to be recognized not as a grass roots manifestation of Durkheimian society but as the product of the class-bound State, bound to its narrowed interest in 'peace' and war-demanding submission from second class citizens to laws and judicial practices which serve only the interest of a few.

The illusion that te State represents the interest of all citizens then passes away, and even fools could see the vast differences between society and the political community exploiting society in the name of society and public welfare. Since fools could see it, so could most criminologists who now pander to the interest of the State in the name of science. And in the interest of saving their skins, they would 'discover' and reveal what people had come to know already-that there are no scientific grounds for defining crime as an act against society and every reason to define criminal laws and penal sanctions as subdued warfare waged by one powerful segment of civil society against an individuated segment of citizens. Short of any general recognition of this, the professionalist's sinecure, begotten of service to the State and its institutions (in the name of science) is not at risk, and because of sinecure the role of the State in the manufacture of crimes is scarcely noted.

Stateless Societies in Relation to Harms and Their Disposal

The Nuer, the Bantu of Kavirondo, and the Tallensi are without States in that no one of them posses a separated, continuous political community having any judicial, lawmaking, or executive capacity either to govern the members of society as citizens or to be solely in charge of relations with outside tribes in peace or war.³⁹ Calculable law as it has come to exist in the West-in either of its civil or criminal forms-is absent. Thus, in these societies there are no norms characterized by politicality and penal sanction. Citizenship and entrepreneurship as these appear in formally and substantively rational States are absent. And the only occasion in which a person may come under the ethic of individual responsibility for his conduct is the rare instance when collective punishment is levied in the forms of physical pain, death, and banishment. Even here, where the punished is regarded as victim of evil spirits nd is believed to be practicing witchcraft, it cannot be certain whether it is the individual or the spirit assumed to possess him who is believed to be the victim of punishment. This means that the idea of individual responsibility does not exist as an ethic. All that is known is that magical ceremonies repeatedly failed to terminate harms.

In none of these societies do crime and penal sanction exist. What is observable are harms and counter harms, their settlement by arbitration and compensation (between clans), as well as harms within clans and their settlement magically. Only as a last resort is anything like punishment rendered. I must be emphasized here that punishment is not necessarily a penal sanction. While penal sanction is a punishment, not all punishments are penal sanctions.

Penal sanction is a State-specified punishment fixed in law to a conduct specifically proscribed by any law which has politicality, and crime is the specific conduct to which a penal sanction is fixed. Both imply a State. While punishments may take place in absence of a State, no punishment is a penal sanction unless a State is present. While crime does not exist where penal sanctions are absent, no intended harm can be a crime unless penal sanctions are present. punishment alone does not signify a crime has taken place, but penal sanction does. In absence of penal sanction, a punishment signifies only that either an intended or unintended harm took place or was believed to have taken place. Punishment without penal sanction is a rule of custom. Penal sanction is a rule of Sate law.

In further clarification, civil law, as it emerged in Western culture, also implies a State-as well as citizenship and the ethic of individual responsibility for conduct. While it has politicality, it lacks penal sanction. Violations of it, when pressed by an injured party, require only that the party be compensated his loss. Nothing is paid to the State by way of fine or other punishment. But compensation without punishment is not what determines whether a law is a civil one. This is a common error. What makes a law a civil one is the fact that it has politicality without penal sanction and is guaranteed by the State-since failure to comply with a civil court order becomes a violation of criminal law and subject to penal sanction. Thus, civil law, either created or recognized by the State as part of its legal order is calculable and is the epitome of formally rational law.

Some students of culture neglect this point and often violate their own rules of method in doing so by assuming that what is the product of Western culture must apply to all other cultures. Thus Wagner, for example, observed how impossible it is to distinguish criminal from civil law among the Bantu of Kavirondo-as it there were a distinction to be made.⁴⁰ That society, without a State, has neither. Custom lacks politicality, guaranteed law, as well as penal sanction. This point is respected, however, by Evans-Pritchard who observed that among the Nuer (a Stateless society also) there is no law in the strict sense because there is on one among the Nuer with legislative or judicial functions.⁴¹

Without any significant distortion of the situations which we find in these three societies, the following applies. one who kills another from a different clan receives the protection of his own clan since each is jointly responsible for the conduct of any one member. Feuds following such an incident may be avoided by ceremony and mediation conducted by elders or diviners who arrange satisfactory settlement by agreed upon compensation which the clan of the killer pays. Punishment does not take place. Feuds may be terminated either by this same method or by the death of any member of the clan of the killer. It is not essential that the killer be the one to die by avengement. In this situation neither crime nor punishment take place. Killings take place and they are acts of warfare. Each clan engaged in a feud operates on the principle of collective responsibility. Even in cases where a killing takes place within a clan, individual responsibility does not appear except n extreme cases of often repeated harms. Among the Bantu of Kavirondo, clan solidarity is so strong that when one kills another the immediate recourse is to sacrifice an animal to propitiate the spirits and to hold purification ceremonies to make it safe for the killer's kinsmen to resume relations with him.⁴²

When punishment occurs in these Stateless societies, the most serious forms are banishment and death. Either may take place-but only for intra-clan harms-after ceremonies have repeatedly failed to make the offender stop his offenses. Ceremonies of restoration and punishment are collective. Restorations amount ot collective forgiveness without punishment and are quite different from formal pardons conducted by a State. Moreover, formal pardons take place most infrequently and penal sanctions are commonplace in societies having States, whereas in Stateless society forgiveness without punishment is commonplace while punishments are rare.

Perhaps the most threatening form of punishment is banishment, and the implications of banishment are both interesting and significant. Only when a man is banished does the principle of individual responsibility apply to him. Only then, out from under the protection of the ethic of shared responsibility for his conduct, does he experience the full meaning of being fully responsible for his livelihood, and for any encounters he may have with others. Deprived of everything which once had meaning for him, he may be set upon by anyone either in his own or from another clan for any reason whatever. The responsibility for the consequences of any act he may perform is his alone to bear.

Like the citizen the banished man is removed from the protection of his kindred and the sentiment attached thereto. unlike the citizen the banished has no institutional life outside kinship bonds short of migration, perhaps, to cities dominated by Western institutions. Pariahlike, between two worlds, at anyone's mercy, his fate is only his own to ponder. There are no market relations to be established with others like himself, no State to guarantee them under civil laws or to bring market behavior and private property under control of criminal law and penal sanctions. But neither the banished nor the citizen may find either protection or restoration to good standing through traditional institutions of kinship and religion as founded on the ethic of shared responsibility. Therein is their sameness.

While the above historical and cross-cultural observations support answers to first order questions posed initially, and while they support the thesis of this work, drawing them together is reserved until the presentation of the second part of this study which deals with the sameness of crime and penal sanctions. It is sufficient here only to note that crimes and penal sanctions are not universal but are unique forms of intended harms limited to specific countries and to a definite period of Western history. They emerged, roughly, as a post fifteenth century phenomenon and as an integral part of a cluster of new institutions expressing individualism as an ethic-vix., formally rational States, citizenship, the institutions of capitalism, and calculable laws composed of two related legal orders (guaranteed civil or commercial laws, and criminal codes which both comprise the legal basis of the citizen role). While general features of crime (blood harms, feuds) are determined by the State and citizenship, special features are determined by the emergence and development of the institutions of capitalism in which innovated criminal laws were instrumental in the creation and early solidification of the division of labor of capitalism, in expropriation of both the tools and materials of work from artisans, and in creating a permanent split between occupational types (entrepreneurs-laborers). Thus these laws solidified for masters only, the role and class of citizen-entrepreneur. With power fully behind this class, any act could become criminal simply by fixing a penal sanction to it and processing it through a growing judicial machinery. When the ethic of shared responsibility collapsed, and when anomie created the ethic and the institutions of individualism, no penal sanction could then be interpreted as an act of war subject to collective reprisal. Then, the formally rational State could stand immune to intended harms lodged against it from outraged clans, for kinship based on the traditional ethic was utterly smashed. henceforth, any violence by the State against any family member was given and accepted as penal sanctioning of a citizen. Forgiveness without punishment was meaningless, and many forms of communal punishments had become crimes.

CRIME AND PENAL SANCTION AS A
SINGLE BEHAVORIAL CLASS

Establishing crime and penal sanction as a single class involves more than observing that each is injurious, for innumerable acts of chance daily result in injury to others. such acts are neither crimes nor punishments. Moreover, even though crimes and punishments are both intended, the fact of intent does ot by itself establish that crimes and penal sanctions are the only harms which intent subsumes. since there are other intended harms outside the crime-penal sanction complex, crime and penal sanction comprise but one part of the total behavioral class of intended harms.

Even so, it is valid to state that no harm can be either crime or penal sanction without intent, when 'intent' is a deliberate functioning to reach a goal. it was established in the first part of this work that feuds, wars, trials by combat, and communally-given punishments have, when rational States appear, become crimes and that crimes do not exist prior to the advent of such States. thus, these acts fall outside the crime-penal sanction complex. Even communally-given punishments do not fall within the State-given class of punishments called penal sanctions. Thus, formal punishment in the modern political sense refers only to penal sanctions.

Apart from these 'pre-State' harms which do not fall under the crime-penal sanction complex, there are other intended harms which, under modern States, fall outside this complex but are condoned by such States as non-criminal harms. Yet, any one of them can be made a crime by the State, first by defining it as a harm against the State, and second by attaching to it a penal sanction. This method of creating crime-or of abolishing it by removal of penal sanctions-is as characteristic today in the treatment of psychotic and civil harms as it was when, historically, traditional forms of justice (collective reprisals, feuds, trials by combat, and communal punishments) were outlawed as crimes. What then are the other intended harms which fall today outside the crime and penal sanction complex; what attributes characterize them which do not characterize crime and penal sanction? The following may be observed:

1. Harms not proscribed as crime which fall under civil or guaranteed law:⁴⁴ violations of civil contract agreements, disputed claims involving legal interpretation of liabilities and obligations under contractual agreements, inability to meet contracted obligations, losses due to another's profit, losses in recovery of bad debts, bankruptcy losses, and innumerable other harms in commercial transactions covered by civil laws and regulated by civil courts and commissions.

2. Harms against the general public by private commercial corporations: fraud, deceptive packaging, mislabeling, distribution of toxic foods, drugs, and cosmetics.⁴⁵

3. Harms 'excusable' upon legal proof of non-responsibility of the offender at the time of his proscribed performance: juvenile harms in certain States, cases of 'legal insanity'-as governed by statute, Judicial procedure or both.

4. Excused harms involving direct violation of criminal laws but which are formally ignored at law enforcement level, or which are handled extra-legally in civil courts or within private professional associations such as the American Medical Association: medical mal-practices, fee-splitting among doctors, violations of a variety of criminal laws by corporation executives, violations of rights of minorities by police and military personnel, violations of blue laws. (Interestingly, long un-enforced laws come daily to be used by police in violating civil rights of minorities-arresting a man for violating old 'syndicalist laws' would fall here).

Harms listed above share with crimes and penal sanctions the attribute of intent, and they tell us something indirectly about crime and penal sanction as a single behavioral class. A few observations may be made in this connection:

1. With one exception, the above harms are either not punishable or are excusable. Intended harms falling under civil law call only for restitution, not repression.⁴⁶

2. There is nothing intrinsic to any of the above harms, nothing to be observed in behaviors themselves, which could warrant their being outside the crime-penal sanction class of harms. Depending upon whether the State proscribes and penally sanctions any of these harms, any of them could fall under the classification of crime-just as any crime could become a civil harm with the removal of its penal sanction and its definition as a harm against the State. Indeed, this has been much of the history of the making and the abolition of crimes by the State. Debt ceased being a crime in this manner and became a civil matter. Early, traditional actions based upon customs-as seen-became crimes by State manipulation of penal sanctions and politicality. Examples are so numerous as to observe an integral relation, an interflow through time, between civil and criminal acts. Either can become the other.

3. The only criteria which determine whether any behavior is civil or criminal are not behavioral criteria (as many psychologists, ministers, philosophers, and 'sociologists' suppose) but are external criteria applied by the State-chiefly, politicality and penal sanction.

4. Whatever determines the civil or criminal status of any specific conduct are the purely external manipulations of law, law enforcement, and penal sanctions; and any group whatever its value system, upon achieving control of political machinery can make anything criminal (at least for a while) and can prevent condemnation of anything insofar as it can maintain itself securely against collective reprisal.

5. Punishability of an act is determined by the power of the State. Ultimately this power rests upon the intensity and spread of the myth that each individual is responsible for his own conduct and that the state is not. At the same time, this power is determined by who holds command over the means of political violence-the instruments of penal sanction.

What may be inferred from these observations of civil and other harms which bears upon the singular character of crime and penal sanction?

All intended hams of the crime-penal sanction complex are punishable. That is, if crime and penal sanction are essentially the same things, then as a class they both must differ from the above-listed harms in being punishable and not excusable. Certainly anything the State defines as criminal is punishable and is not excusable except as the State exercises its power of pardon. Interestingly, in civil harms where the power to pardon rest not with the State but wit citizen associations, the State has no power to punish. Only until this power to pardon civil harms is usurped by the State does the State have the power to punish. In any such instance, the usurpation is accomplished by statute proscribing a civil harm as criminal and pardonable, and fixing to it a penal sanction in lieu of pardon by the State.

The Punishability of Penal Sanctions and the Rebirth of Crime

Anything legally proscribed as criminal is punishable, but is penal sanction itself punishable? If crime and penal sanction are both punishable, then by these external criteria they belong to the same class, and it is only by these external criteria that they differ fundamentally from all other intended harms. Indeed it is vain to look for any State-supported rationale under which penal sanctions performed by the State are punishable as crimes. But one need not search far back in history, or look in vain cross-culturally for cases where punishments have transmuted into crimes through social movements and revolutions which transform the institutional structure of society. It is exactly in such transformations where the true relation between crimes and penal sanctions is most clearly seen.

With the decay of consensus over the legitimacy of dominating social institutions and laws supporting them, further penal sanctions imposed by the State for violations of such laws have come to be viewed collectively as themselves criminal (in the non-technical sense). But the technical fact of criminality is not established until the threat of collective reprisal against the State is made good by the deposition of the State, or else is terminated by the collapse of the movement against the State. in the latter case few changes take place in the criminal law and the characteristics of crime remain relatively unchanged. But where political movements succeed, where State-supported institutions are transformed, many of the old proscriptions under criminal law disappear-giving place to new proscriptions subject to pardon and penal sanction. Crime is thus reborn but with a different face.

With the rise of a new political community to full power and with full or partial transformation of once dominant institutions, what once was criminal becomes legal, immune to reprisal by the State. If economic institutions are transformed, a host of activities covered only by civil laws and guaranteed restitutions are proscribed as criminal and penally sanctioned. just as the new State makes legal much of what once was criminal, so it also makes criminal much of what once was legal, as both civil and criminal laws are transformed. Moreover, what once were meted out as punishments by the old State are punished as crimes by the new one.

The Reduction of Crimes and penal Sanctions to Reprisals

On the eve of successful revolutionary movements, when one State totters and a new one ascends, the dichotomy between crime and penal sanction blurs and vanishes with the decline of the power of the descending State to keep this dichotomy alive and credible in the minds of citizens now risen in open revolt. Citizenship, as a role defined in civil and criminal law, itself disappears as hour by hour the descending State loses ability to secure itself against those reprisals which blindly it insist are crimes. Crime and penal sanctions then reduce merely to intended harms and counter harms-to reprisals and counter reprisals between two separate, warring States.

Until the issue of power is settled in this trial by combat, no harm is either crime or penal sanction, simply because neither the ascending nor the descending State can create and apply to the other any laws having politicality and penal sanction. In this power vacuum, penal sanctions become acts of war; crimes are the same. The object of each State is to transmute the other's harms to the status of crimes, and to force acceptance of its own harms as penal sanctions. This is the primary objective in all warfare involving States locked in a power struggle with other States; it makes no difference whet her one State emerged from among those governed by an older State or whether two nation-States are at war. The objective is the same. Wars differ sharply from feuds in this regard. in feuds, political submission is not an objective; avengement is. When feuds end, each party goes back home with its equality intact. When wars end, equality of the parties t war is unthinkable. The vanquished are never tt home.

Until this objective is reached, neither the ascending nor the descending State has the power to pardon the other, and forgiveness is impossible. Murders and executions are indistinguishable-having become killings, the casualties of war, they have little meaning until long buried and come to be remembered as heroic sacrifices in the struggle for justice and law. They then become part of the State's community of memories, officially approved by 'educated' men. But in the struggle, what is moral and what is not are totally inaccessible to reason, because reason, like God, is anyone's slave until the issue of power is settled. Whatever becomes moral in the long run depends upon how the war is terminated and upon whose values become institutionalized in everyday society as meaningful law, not merely as enforceable statutes.

the above inference that all harms in the crime-penal sanction complex are punishable, is supported by every case of institutional transformation in the history of any society undergoing them. Except in social upheaval, penal sanctions are not immediately punishable as crimes, but because institutional transformations may be expected to take place at any future time, the following principle is valid:

Any harm punishable by the State as crime stands ultimately in the same status as any harm imposed by that State as punishment.

Peal sanctions ar punishable as crimes whenever institutional transformations take place, and the illusion that crime and penal sanctions comprise two independent species of behavior is sustained as if factual only when a given State and its institutions are either supported by consensus or else when (by coercion) that State can otherwise keep itself immune to successful reprisals from any source.

The Excusability of Intended Harms in Relation to Crime and Penal Sanction

In the list of intended harms outside the crime-penal sanction complex, it was seen that such harms were either excused or were excusable-that they were not immediately punishable by the State. Neither excusability nor punishability have anything to do with the nature of the actual conduct which is excused or punished. Thus there is nothing intrinsic to behavior itself which determines either its punishability or its excusability. Moreover, any harm in the civil category can-either by revolution or by the state's manipulation of law-become punishable or subject to penal sanction. Also, any harm in the criminal category can become a penal sanction. Also, any harm in the criminal category can become a wholly civil matter by removal of panel sanction. it is the State, therefore, which determines at any given time what specific acts are excusable or punishable.

Even within the crime category, certain harms are excusable or at least are condoned or ignored by the State, inasmuch as scores of violations of various criminal laws, applicable only to professions and executives, are processed as if merely civil matters in course where no penal sanctions can be meted out. Thus, the more command one has of central institutions, the greater is immunity to punishment, the less his probability of arrest and incrimination in criminal court. This observation means only that differential excusability and punishability is a social fact of differential proximity to political power. it is scarcely headline material-except for sociologists whose slum theory of crime is still prevalent in the classroom. By and large, just s civil laws applied only to the old guild masters, and criminal laws only to artisans, so does the same situation prevail today. The closer one is to power, the less the risk of incrimination, and the more 'civil' are one's harms against others.

Non-punishability of civil harms today attests only to the positive interest of the State to maintain certain institutions such as semi-private national or multinational corporations, national or transnational markets, and militarism as part of this complex. Differential excusability will continue to exist insofar as this interest is continuous. the important fact is not that these institutions are 'economic' but that business is a system of power,⁴⁷ and that these institutions are the means of international power politics and are part of the total arsenal for making war at home and abroad-of reducing behaviors globally to the status of crimes.

Victimisation As a Common Feature of Crime and Penal Sanction

There being no behavioral attributes among civil harms to warrant the separation of civil harms from those of the crime penal sanction complex, it is necessary to see if distinguishing attributes might be found among crimes and penal sanctions which are not common to civil harms. here, victimization appears as such an attribute, but again under control of the state as will be seen.

Both crime and penal sanction presuppose a victim, i.e., a personal or abstract object upon whom an intended harm is imposed. In both, the victim is clear-cut. For crime, the victim is by definition the State, the political community which defines crime as an intended harm against itself. For penal sanction, the victim is a citizen reduced to the status of convict. Intended harms of civil law jurisdiction presuppose no clear-cut victim, and if the term 'victim' has any meaning in market relations, its meaning refers only to non-punishable torts, unless a clear violation of criminal law is involved and is prosecuted as such. In market relations, if victimization exists without violation of criminal law, the 'victim' is indefinite, usually not known personally to the injuring party. 'Victims' are diffuse.

Who is the victim when a man deliberately, under capitalism, initiates bankruptcy procedures? Who is the victim in contracts where one man who agreed to hold the other harmless against certain losses, incurred those losses even when the second party caused them? Who is the victim when California orange growers corner the market and cause Florida growers heavy losses? unambiguous answers to such questions are impossible. In most cases, the intent was to make profit by any legal means, not to make victims. nothing about victimization here is as clear cut as when a man murders another or when an executioner electrocutes him for having done it. But civil harms do pass under the jurisdiction of criminal law and become crimes. it is just here where the meaning of victim and victimization becomes clear.

When a civil harm passes under criminal law, the absence of a clear-cut victim continues to hold. But since that act is now defined as a harm against the state, the 'victim' becomes the State. There are at least three types of 'crimes' in which this is seen: (1) acts involving personal indulgence either for pleasure or for inflicting injury or death on oneself, (2) acts involving personal and collective protest, and (3) acts which are outlawed forms of entrepreneurship, or illegal enterprises of capitalism.

The first type includes, for example, 'pot smoking', taking LSD, shooting hard narcotics. While other people may be harmed in these acts of self-indulgence, the idea of intended victim is unclear-except by definition when the State intervened to declare itself the victim. The second type includes, for example, certain peaceful demonstrations, 'sedition', obstructing 'justice', alleged treason, failures to comply with draft requirements, active aid to persons to avoid the draft, public speeches against the draft which encourage resistance to the draft or to other State-supported policies. The third type includes, for example, prostitution, shilling, buying and selling hard narcotics, certain forms of gambling, making and selling bootleg whiskey, operating a wire service, playing the numbers game, and a host of other enterprises outlawed by the State as harmful to itself.

The only clear-cut 'victim' in any of the above cases is the political community which defined these acts as harms against itself. Nothing seems more clear than that crime, legally construed, refers not to any person as victim but only to the State. When civil harms pass under criminal law, whether a real, personal victim was intended or not is not really an important question in deciding the criminality of the act.

Like civil harms, direct victims are not clearly visible in the above actions. Penal sanctions are fixed to these actions not because they may be harmful to others, for that is incidental, but because the State has proscribed them as harmful to its own interests. in short, crime has nothing to do with the fact that one person may intentionally harm another but everything to do wit the manipulation of law, with the application of criteria external to the acts of harm themselves. Victimization stands with excusability and punishability as externally imposed characteristics which all too often are regarded as intrinsic to the behavior in question. One of the principle ironies of this is the great lengths that ar taken in criminal court procedures to prove that 'intent' was present in the act-as if 'intent' even if subject to proof, were actually important.

There are indeed other harms proscribed by the State in which a direct victim, is clearly visible: theft, burglary, robbery, sexual assault, fraud, embezzlement, confidence games, fee-splitting in medicine, industrial espionage, price-rigging among a multitude of corporation executives in bidding for government contracts, kidnapping. These intended harms cut across the whole scale of social classes. But her an important question arises: are these harms crimes because the offender has in mind an intended victim, or are they crimes because in each case the State had defined itself as victim? If there were no difference between the interests of the State and the welfare of all people it governs, then any offense by one person against another would at once be a harm against the State. But the State takes only a token action in high crimes, and presses hard on low ones. Apparently, the State is less a victim of high crimes than of low ones like rape, robbery, and embezzlement. in each of the above cases, the fact that an offender may have had in mind an intended victim as object of harm is incidental. A crime, by State definition, is a harm against the State. On few occasions do murderers have the State in mind as the intended victim; yet it is the State-as-victim for which the man is punished. This must be true, unless the State is willing to say that crime is not a harm against the state.

As in all previous cases, attributes of behavior are not responsible for any legal class of behavior. What is responsible for civil harms and what is responsible for those deemed criminal are criteria external to the social behavior in question. By manipulation of proscription, politicality, and the power to punish and pardon, the State can make itself the symbolic victim of any act whatever-whether actually armful or not-by defining it as such and by prosecution on the assumption that it is true.

The whole process from arrest through imprisonment to post-confinement adjustment is a process of victimization not of the State but of the person who was judged to have made the State a victim. This process holds the full meaning of incrimination. it constitutes a life-long stigmatization of the 'criminal'-a source of wealth for psychiatrists, ministers, police, judges, lawyers, clerks, politicians, social workers, and writers of novels. It is a State-created opportunity for continued renewable gains by a whole hierarchy of occupational types whose life-style is utterly dependent upon the continuation, not the termination, of this process. Nothing would harm the State more than to have no crime at all. It is this process which involves identification of the whole person by one act, and ultimately either making that person accept that narrowed self or to accept 'rehabilitation' as based on the assumption that the narrowed self was the whole self. is it not strange they hen tried executives serve suspended sentences, they are denied the 'benefits' of rehabilitation?

In legal procedure the personal victim of crime, though incidental, is often hard to identify, both the victim of punishment never is. Arrested, mugged, fingerprinted, numbered, tried, punished, released to officials, his identity is externally never uncertain. punishment is an unambiguous consequence of a symbolic harm, but is only one part of the total process of victimization or incrimination, and unless the incriminated come to see themselves as criminals (either with pride or guilt), there are no behavior characteristics by which the person of a criminal and the person of a punitive agent are separable as distinctly different species. The attributes which separate crime from penal sanction are external criteria-external to the social-interaction to which these criteria are applied. Thus far it has only been shown that crime and penal sanction do not belong to behaviorally independent classes. What remains is to show that they are essentially the same. This recalls the question: do legal criteria for identifying crime also identify punishments meted out by the State?

The Sameness of Crime and Penal Sanction

Establishing that crime and penal sanction are the same may proceed by taking the criteria which the State uses for determining whether an act is criminal, and then testing to see if these same criteria apply with equal validity to penal sanctions. If they do, then even within the criminal law there is no way to differentiate crime from penal sanction on behavioral grounds, because the State's differentiae would establish merely that any penal sanction may also be regarded as criminal.

The differentiae of crime in relation to penal sanction derive from the characteristics of criminal law (uniformity, politicality, specificity, and penal sanction), and of these only specificity refers to the actual conduct in question or on trial. These characteristics are construed legally as criteria by which to determine whether a given performance is a crime, not whether the performer is criminal. Thus, proof of a crime is not itself taken as proof of criminality. Yet, the differentiae of crime, derived from the characteristics of criminal law, are used procedurally in court to determine criminality.

The present objective is not to test the scientific value of using these criteria as proofs but to see if they apply also to formal punishment. To demonstrate this, the same procedure is used by Sutherland and Cressey will be followed, but with one difference. instead of providing a case involving a crime to demonstrate the applicability of a given criterion, a case involving a penal sanction will be used (as in the table below). Tis is sufficient to the kind of proof required here, because if these differentiae are only the differentiae of crime, then no one of them could possibly be illustrated with a case of penal sanction-unless, of course, there is a real difference behaviorally between crime and penal sanction.⁴⁸

It is quite obvious that these two differentiae of crime cannot be also the differentiae of punishment by the State. It follows that these externally applied measures are the only measures by which the State not only identifies crime, but they are at once the measures by which the State can manufacture crime at will. There is nothing in the first five differentiae to prevent them from applying with equal validity to penal sanctions. In terms of these few criteria, crime and formal punishment are one and the same forms of conduct. what the last two differentiae, above, reveal is that the only criteria by which these intended harms are made into distinct and independent classes reduce in the last analysis to power and who holds it. It is power alone which creates and sustains the illusion that crime and punishment are independent, mutually exclusive species of conduct. This illusion is basic to nearly all teachings of modern criminologists, armchair philosophers, psychiatrists and psychologists-all of whom claim validity for their positions on purely scientific grounds. Ironically, however, no position is less certain than theirs because this dichotomy, created and reified by the State and founded upon the fiction that only the governed are responsible-each for his own harms-is justifiable only on political and ideological grounds. To accept that only individuals as individuals are responsible for crime is at once to accept that the State is in no way a determinative factor in its advent and continuation-and this in the face of the fact that by manipulation of these external criteria whole categories of crime, either gradually or by revolutionary means, can be and have been abolished and replaced with others.

SUMMARY

Within the initial definitions, first and second order questions may now be answered on the basis of historical, cross-cultural and legalistic observations made in the foregoing sanctions. Crime and penal sanction in being limited to specific countries and to a period of Western history are not universal but are a function of the emergence of formally rational States, of citizenship under such states, and of the transfer of the power of pardon from communities based upon the fiction of shared responsibility to a political or territorial community founded upon the fiction of individual responsibility. With these institutions developed-two related legal orders. State guaranteed commercial and/or civil codes, and criminal laws-both of which define the general role expectations of citizenship at any given point in the history of formally rational States and the institutions supporting them.

While general characteristics of crime are determined by the emergence and continuation of the State and citizenship, special characteristics-with reference tow hat specific acts are proscribed-are determined by the kinds of institutions-socialist, capitalist, etc.-which the State supports. In the present study, these special features are determined by the emergence of the institutions of capitalism and by guaranteed commercial codes corresponding to emergent criminal laws which are meaningful only within a context where the market system, private property, and private laws of contract predominate.

The chief business of the State is to reduce the institutions founded upon the ethic of shared responsibility for individual conduct to those founded upon the fiction of individual responsibility while at the same time avoiding the probability of successful reprisals against itself. Obtaining a clear monopoly over the power to pardon is fundamental to this end. any weakening of the solidarity of kinship and religious institutions, any weakening of social movements of citizens bent upon reconstruction of institutions supported by the State is instrumental to this end. The power of the State is enhanced accordingly. This principle holds regardless of whether one State, through war, reduces the acts of another to the status of crimes or whether a new State emerges within the corpus of society ruled by the State which is challenged.

With the power to pardon solidified, politicality and penal sanction as chief characteristics of the criminal law uncontestably emerge. it is only then that crime-as defined by the State itself-becomes fundamental to the very existence of the State. And this form is determined by what the State chooses to sanction penally.

That the dichotomy between crime and penal sanction is sustained only by those who command the sources of political power is attested to whenever full or partial institutional transformations take place within societies already governed by a State. With the emergence of strong political movements, this dichotomy disappears as an enforceable entity, as all intended harms by either the ascendent or the descend State reduce to counting the wounded and the dead-to reprisals and counter reprisals-in short, to war. And until the issue of power is settled, in this trial by combat, crime and penal sanction are meaningless except as war. When the issue of power is settled, the dichotomy is again reified, and if, later, consensus stands behind it crime and penal sanction will again be seen, erroneously, as mutually exclusive species of human conduct. The 'morality' of the victorious will have become imposed; murders and executions will have risen again from their status of mere killings, and crimes and penal sanctions will have been reborn. The most critical condition in keeping this dichotomy credible among the governed is the ability of the State to secure itself against collective reprisal from any source whatever.

Under the characteristics of the criminal law, and under the differentiae of crime, there are no criteria intrinsic to the behaviors called crime which can warrant separating crime and punishment as two mutually exclusive classes of conduct. Any harm punishable by the State as crime stands ultimately in the same status as any harm imposed by that State as a penal sanction. Moreover, of all the differentiae said to identify crime and criminality, the bulk of them apply with equal validity to penal sanctions. The two which clearly distinguish crime from penal sanctions are, again, the external criteria of politicality and penal sanction. And these are the chief measures by which the State can manufacture or abolish crime according to its own interests, and until the advent of institutional transformation, can remain beyond recrimination.

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37. E. H. Sutherland, White Collar Crime (new York: Holt, Rinehart, Winston, 1949).
38. Punishment and Social Structure, op. cit.
39. Evans-Pritchard and Fortes, op. cit., passim. These observations also applied to other Bantu offshoots-Kikuya, Meru, Embu-prior to imposition of British rule on these societies. See, D. H. Rawcliffe, Struggle for Kenya (London: Victor Gallancz, Ltd., 1954), passim, and Jomo Kenyatta's treatment of Kikuyu political institutions in Facing Mount Kenya (London: Secker and Warburg, 1938), passim.
40. Gunter Wagner, "The Political Organization of the Bantu of Kavirondo." in Evans-Pritchard and Meyer Fortes, op. cit., pp. 217-218.
41. E. E. Evans-pritchard, "the Nuer of the Southern Sudan," in Evans-Pritchard and Meyer Fortes, op. cit., pp. 293-294.
42. Wagner, op. cit., p. 202.ff.
43. Sutherland and Cressey, op. cit., pp. 12-13. Jerome Hall's differentiae of crime are reduced by these men to seven criteria. Both Hall and these men fail to indicate that their differentiae of crime apply with equal force to penal sanction. See Hall's Principles of Criminal Law, second edition. (Indianapolis: Bobbs-Merrill, 1960), pp. 14-26. See definition of intent as differing from motive.
44. Weber, On Law in Economy and Society, op. cit., pp. 12, 49-59; for discussion of State versus extra-State law, see pp. 16-17.
45. Fred Cook, "The Corrupt Society," The Nation, June 1-8, 1963 Special Issue, passim.
46. Emile Durkheim, The Division of Labor in Society (Glencoe, Ill.: Free Press, 1960), pp. 70-133, discussion of repressive and restitutive sanctions.
47. Robert Brady, Business as a System of Power (New York, Columbia University press, 1943).
48. Sutherland and Cressey, op. cit., pp. 12-13.
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