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Paradoxes and confusions at the dawn of a “scientific revolution”

Course: “Théorie du droit pénal et criminologie” (Prof. M. van de Kerchove) European Academy of Legal Theory (Brussels), Master’s course 2001-2002

Maria Isabel Köpcke Tinturé (ESADE, Barcelona) April 2002

“[U]n paradigme trop exigeant, qui demande trop à ses forces, ne perd pas seulement sa capacité de représenter la réalité, mais, comme une cage trop stricte,

finit par déformer la réalité, par lui faire prendre des formes aberrantes, sources d’instabilité et d’insécurité”

(M. Vogliotti)

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IInnddeexx 1. INTRODUCTION: THE PARADOX OF CRIMINAL LAW AFTER MODERNITY ..............4

1.1. BETWEEN A RENEWED PARADIGM (PROXIMITY)... .....................................................................4 1.2. ...AND FACTUAL STAGNATION IN THE PAST (EXCLUSION)..........................................................5

2. A CLOSER VIEW AT “NEUTRALISATION” .............................................................................7 2.1. “NEUTRALISATION” AS A GOAL: A SUI GENERIS FUNCTION?....................................................7 2.2. “NEUTRALISATION” AS A MEANS: IN SEARCH OF (ITS) JUSTIFICATION ...................................8

3. EXTRINSIC EVILNESS AS JUSTIFICATION (“HARM-PRINCIPLE”).................................9 3.1. THE GLOBALS’ NEED FOR “SICHERHEIT”..................................................................................9

3.1.1. Inconsistency at the level of instruments (“neutralisation”) ............................................10 3.1.1.A. “Neutralisation” is not only inefficacious... ..............................................................................10 3.1.1.B. ... but counter-productive ...........................................................................................................11

3.1.2. Confusion at the level of ends (“legal certainty”) .............................................................11 3.1.2.A. “Legal certainty” as the globals’ aim........................................................................................12 3.1.2.B. ... and its lack of autonomous moral value.................................................................................12

3.2. THE LOCALS’ ATTEMPT AGAINST “SICHERHEIT” ...................................................................14 4. INTRINSIC EVILNESS AS JUSTIFICATION (“ENFORCEMENT OF MORALS”) ...........16

4.1. FROM “SOCIAL DISINTEGRATION” TO CRITICAL MORALITY .................................................16 4.2. A (CRITICAL) PLEA AGAINST (SOCIAL) MORALITY .................................................................17

5. CONCLUSION: THE (MORAL) NEED FOR A “RECONFIGURATION OF POWERS” ...18

BIBLIOGRAPHICAL REFERENCES..............................................................................................21 BIBLIOGRAPHICAL REFERENCES

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1. INTRODUCTION: THE PARADOX OF CRIMINAL LAW AFTER MODERNITY

1.1. Between a renewed paradigm (proximity)... According to Durkheim, a “strong state of collective conscience” goes hand in hand with

the device of “retributive law” as the principal means of achieving social order1. “Mechanic solidarity” at the social level thus gives rise, at the legal level, to “concentrated” coercive institutions, in both senses of “concentration”: as institutional centralisation (extension) and as punishment conceived as “pain”2 (intension). Punishment is, it can be said, to law what criminal law (in its classic sense) is to the State (also in its classic sense): consequently, it can be inferred that any transformation in the role of law, or of the State, will imply an equivalent mutation of the role of punishment and, a fortiori, of criminal law3.

“Erosion” of the State is precisely one major implication of the “new paradigm” of law, as predicated in the academic-theoretical realm. Law “in network”, with its weakening of the notions of “authority”, “hierarchical normativity” and “disciplinary boundaries”, transforms the post-modern (Western) State – it is argued – into one more partenaire (albeit primus inter pares) in the pluralist “game/play” of “public action”4. We are told that our “societies of change”, nostalgic of an “eternal present” amongst the vertiginous acceleration of social (and legal) time, regard law more and more as a means to private (immediate) satisfaction rather than as a goal set by collectivity and reachable in long-term5. We witness, indeed, what has been called a “quadruple activism” of new actors who penetrate the criminal scene, almost reversing the one etatist monopoly of penal justice: judicial, mediatic, legislative and associative activism6. Amongst them, victims play an increasing role in the subjectivisation (“civilisation”) of criminal law7. In a society whose physical density becomes considerably greater than its moral density8, there is a disaffection in the penal domain towards the idea of retribution, let alone the chimera of rehabilitation. In this sense, criminal law is privatised by a growing demand of “justice of proximity”9 – this being the antidote to globalised identity, temporality and space... which are, respectively: anonymity, diachronism and distance, thus engendering a strive towards identity, synchronism and localisation.

1 DURKHEIM 1973:52 et seq. 2 Ibid.:33-34. Despite the arguable circularity in the durkheimian “reflective” relation between law and “Volksgeist” (moeurs) (cf. ROBERT 1997:64; ROTTLEUTHNER 1987:18-19). 3 Whilst Durkheim defines sanction (the genus of punishment) as “quelque caractéristique qui, tout en étant essentielle aux phénomènes juridiques, soit susceptible de varier quand ils varient” (DURKHEIM 1973:33), Robert regards penal law as intrinsically bound to “etatist modernity”, with the consequence that “la crise de la normativité étatique dans les societés d’Europe occidentale se manifeste particulièrement dans le domaine pénal” (ROBERT 1997:56). Though a reduction of “criminal law” to “State” (in the formal sense) is critizaseable from a definitional point of view (VAN DE KERCHOVE 1997:106), a correlation between transformations of the State (in the material sense) and of the (criminal) law is widely acknowledged (cf. RENARD 2000:18). 4 COMMAILLE 2000:40. 5 TOFFLER 1971:62; VIRILIO 1995:162; and, in general, VAN DE KERCHOVE and OST 1999:488 et seq. 6 GARAPON 1996:9 passim. 7 Ibid.:18. 8 BAUMAN 1998:107. 9 VAN DE KERCHOVE and OST 1999:491.

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In its “human” dimension, “proximity” results in an increasingly restorative function of criminal law, the indemnisation (retributive restoration) being “negotiated”, almost surpassing – rather than collaborating with – the guidelines set by law10. The State, within the “new paradigm”, operates through delegation (Crawford), classical punishments become “imperfect” (Durkheim) and concentrated repression substituted by diffuse governance...

1.2. ...and factual stagnation in the past (exclusion) Or, so the theoretical representation goes. For it is more and more frequent to find,

within (legal or sociological) analyses concerning the evolution of criminal law, a reference to “paradoxes”11. These are not of a binary type, say between the “official model” and “reality”. A closer look reveals incoherences within the “official model” itself and, a fortiori, in its application (reality). The paradigmatic “modest State” and “flexible law” is confronted with actual “legislative inflation” and “tolerance zero” strategies. More than this: there is a talk about “selective intolerance”, “social dislocation” and “residualisation by the market” of the “waste of globalisation”12.

Bauman, in his much-telling account of the social implications of globalisation, pursues Foucault’s metaphorical use of Bentham’s “Panopticon” as an image of modern transformation13. State-based, comprehensive surveillance techniques (in the extreme keeping a constant threat of punishment so as to allow no private space) are characteristic, following Foucault, of modern prisons – themselves incarnation of the all-mighty Leviathan, the concentrated and reified power, that changed social control from “a situation where the many watch the few” (pre-modernity) to “a situation where the few watch the many” (Mathiesen). Modern penitentiaries, landmark of a reorganisation of space, were primarily conceived as houses of correction (rehabilitation)14, even though they de facto functioned as factories of disciplined labour15. To such image, Bauman opposes the (“post-correctional”) “Synopticon”: a situation where “the many (as many as never before in history) watch the few”; the “many” being the “locals”, the “few” being the “globals”16. This is, according to him, the result of the development of new techniques of power in post-modern world. Such techniques, direct result of (cultural, economic, technological) globalisation, can be symbolised in the rationale of the electronic database17: whilst not being accessible to all, it functions as a refined instrument of selection, a device to sort out “intruders” from “creditworthy clients” who – and only them – are permitted entrance and, consequently, mobility.

10 VAN DE KERCHOVE and OST 1999:491. On the “co-legislative” role of the (public’s) “accusation power”, cf. GARAPON 1996:24 et seq. 11 Cf. ibid.:5; CRAWFORD 2001:7; ROBERT 1997:57. 12 CRAWFORD 2001:6; BAUMAN 1998:113. 13 FOUCAULT 1975:204; BAUMAN 1998: 48 et seq. 14 FOUCAULT 1975:239. 15 Confinement through “prisonization” (Clemmer), rather than a “school of employment”, acted a “second-best, forcible method to augment the ranks of productive labour” for the sake of an industry eager to absorb new working forces (BAUMAN 1998:111). Though strict rehabilitation was not attained (as has never happened by imprisonment and, maybe, was illusory to believe: ALLEN 1981), the inmates’ “industrial reconversion” served, at least, a purpose of integration. Society was in need of them, though not in the shape they presented so far. 16 BAUMAN 1998:52. 17 According to Bauman (following Poster), “the updated cyberspatial version of the Panopticon” (ibid.:50).

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The new “global elite” is extraterritorial, it has beaten the traditional boundaries of time and space. It is “global” as are the market and the media; it is “elite” since it dominates the rest, the “watchers”, confining them in strict-as-ever territorial limits. Imprisonment, as “the ultimate and most radical form of spatial confinement”, is in contemporary societies (such as the USA) a preferred and increasing device “of dealing with the unassimilable, difficult-to-control, and otherwise trouble-prone sectors of the population”18. What is peculiar to synoptical techniques is the active role of the locals in their “domination”; an oppression without surveillance: it is the locals who watch, yet it is them who are (self-)confined. Such switch of the point of attention from the “margins” to the “centre” explains a further feature: the aim of spatial separation is not re-education anymore, not even re-conversion: it is pure “estrangement”. Exclusion is no longer a means (however unjust), it has become an end in itself. Prisons have passed from being a “school for employment” to being an “alternative to employment” vis-à-vis a capital who nervously reacts to the news of falling unemployment19.

“Proximity”, in its temporal and geographical dimension, thus functions as a means of “exclusion” of a sector of population. Instantaneity of repression is increasingly valued; spectacle replaces procedure, and preys are carefully chosen20. The globals need to feel that “something is done” (Crawford); and this demands, besides mediatic prime time and contagious emotions21, reinforced strategies of “local security” (eventually through criminalisation of minor offences)22. In short, the globals’ crusade against the “wastes of the market” appears, in a purely descriptive approach, as the necessary counterpart of “proximity”. It seems as if the State (or what is left of it) was forced to exacerbate its (traditional) repressive mechanisms in order to comply with the (new) restorative demands of the “global elite”.

However, this might be too early a conclusion. Authors increasingly speak about “neutralisation” to designate what we have been referring to as a strategy of spatial confinement. What is its connection with (classical) retribution? How does it serve restoration? Moreover, what is the ultimate justification of such use of criminal law (i.e., of punishment)? And, finally, how do these “paradoxes” fit the “new paradigm”?

In the following I shall discuss both the nature of “neutralisation” (vide infra 2.1) and its (possible) foundations (vide infra 2.2; 3; 4). Exploration of the function and justification of punishment are classical enquiries in penal theory; only an application of them to the sui generis phenomenon of “neutralisation” may allow to make the latter comparable

18 Ibid.:106. States celebrated as “paradises of liberty” (from the “globals’” point of view) dedicate unbelievable budgetary amounts to the building and running costs of prisons; and this, regardless of the governing political party (ibid.:117). 19 “Through its stock-exchange plenipotentaries [such capital] rewards companies for laying off staff and cutting the number of jobs” (ibid.:111). This resembles very much Foucault’s account of the measures taken in the XVII century to cope with leper-victims, as compared to the Panoptical institution: whilst the latter is “polyvalent dans ses applications: (...) amender les prisonniers, (...) soigner les malades, instruire les écoliers, garder les fous...”, the former constitutes an exceptional state aimed at genuine exclusion, “exil-clôture” (“on le laisse s’y perdre”), “rompre les communications, suspendre le temps” (FOUCAULT 1975:231-244). 20 GARAPON 1996:29. 21 Ibid.:21; BAUMAN 1998:118 et seq. 22 CRAWFORD 2001; GARAPON 1996:33.

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(commensurable) to classical devices. And intelligibility is, besides one of the aims of a scientific paradigm, a necessary prerequisite for reality’s evaluation (vide infra 5).

2. A CLOSER VIEW AT “NEUTRALISATION”

2.1. “Neutralisation” as a goal: a sui generis function? “Retribution”, “prevention” and “restoration” have traditionally been studied as the

(main) functions of punishment. Prima facie, “neutralisation” appears as a sub-species of “prevention”: the former is aimed at “paralysing”, obstructing further action by the subject (“suspendre le temps”); the latter, in its “special” variant, conceives punishment as a way to “empêcher l’individu qui en est frappé de commettre de nouvelles infractions dans l’avenir”23. Indeed, “neutralisation”, as a synonym of “incapacitation”, is included by penal doctrine within the category of “special prevention”, together with “treatment” and “resocialisation” (and besides “elimination”)24. Doubts are raised, by such authors, as to the legitimacy, practical efficacy and actual use of neutralisation as a function25 - however, the conceptual possibility to include it as a branch of “prevention” remains unquestioned.

Yet within the different sub-species of “prevention” there are variations as to their purpose. “Function”, we are told, is an intermediate concept between (actual) “effects” and (ideal) “purpose” of a certain punishment26. One could add “justification” as ultimate extreme in the scale of abstraction (ideality). Though such notions are conceptually different, nonetheless they are interrelated to the extreme, I dare say, that they co-determine each other. This is the case when a correlation is made between the three “typical” functions and the justifications consisting in objective seriousness of the act, moral responsibility of the author (in relation to the “retributive” function), dangerousity of the author (“prevention” function) or importance of the damage caused (“restorative” function): one group would not make sense without the other. Something similar happens between functions and purposes. The latter can, inter alia, be considered in terms of values and protected interests. In the case of the retributive function, the underlying purpose can be broadly defined as the promotion of a certain conception of justice; restorative measures, also roughly speaking, can be conceived as protecting the victim’s interests. However, if we ask which interests (or values) are protected by a punishment that functions as a “special prevention”, the immediate answer seems more blurred. Leaving aside the (ultimate) justifications of such punishment, in respect of which it acts as a means (vide infra 2.2), the immediate purpose of “prevention” clearly varies depending on the sub-species one has in mind.

I suggest a comparison between “treatment” (which, to these effects, can be assimilated to rehabilitation) and “neutralisation” (equiparable to elimination and incapacitation). When contrasting “treatment” to “retribution”, Parker ascribes to the first (by contrast to the second) the features of (i) being aimed at benefiting the person who is treated and (ii) not being based upon a past “offending conduct”27. The contrary is the case for retributive sanctions. However,

23 VAN DE KERCHOVE and TULKENS 1997:421. 24 Ibid.:422-223. 25 Cf., respectively, KERNER 1994:111 and VAN DE KERCHOVE and TULKENS 1997:422. 26 Ibid.:418. 27 But on a “calculus of benefit and detriment to the person affected” (PARKER 1968:25 et seq). Though this author in fact discusses “treatment” and “punishment” as types of “official infliction of pain”, I do not consider it

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which features correspond to “neutralisation”? It is obviously aimed at inflicting pain (exclusion), especially if spatial confinement does not work (anymore) as a substitute for the labour market (which – as already noted – could be assimilated to “treatment”). But is it based on an “offending conduct”, or on a “involuntary dangerous” behaviour28? More: is there any danger at all?

It is at this point, I believe, that “classic” neutralisation/incapacitation function must be distinguished from the one at hand (characteristic of post-modern transformations). The status of “classic” neutralisation within the category of prevention is doubtful by itself; but we shall not deal with that here29. What interests us is the purpose-dependence of (contemporary) neutralisation in order to be placed at all within a (classic) category of function. Should we conclude that locals are punished for an offence, the classification problem would amount to the one concerning “classic” neutralisation. Should we, by contrast, find out that the neutralisation is “based” upon “involuntary dangerous” (or even harmless, and intrinsically correct!) behaviour, the pain inflicted would have no correlation with the measure’s “base” (bad in exchange for good?!) – and thereby distort a principle that seemingly governs the different functions (at least, when compared to the purposes).

This insight suspends the answer regarding the nature of neutralisation as function, thus pushing the question one step further: namely, to the level of justification (itself underlying the one of purposes). The fact that neutralisation may not fit into any of the traditional functional schemes does not, for itself, constitute a reason for (moral) rejection of such measure. Despite the referred correlation between the notions of justification and function, it is perfectly possible (and penal theory constantly proves it) to associate, say, a restorative measure to an ultimate retributive justification30. Likewise, the indeterminacy regarding the function does not impede us to enquire after the justification. On the contrary, it demands us to do so.

2.2. “Neutralisation” as a means: in search of (its) justification I shall support the view that, despite the traditional three-fold division of justifications of

punishment, only two of them are ultimate foundations, whereas the third one is instrumental to either of them.

The official infliction of pain to a person upon showing a certain conduct can, roughly speaking (and taking for granted some minimal endorsement of elementary – formal – justice considerations), by justified either with reference to the conduct’s (negative) effect and/or to the conduct’s (negative) nature. Put otherwise, the negative judgement of the conduct can

a distortion of his thesis to place the debate within the realm of “functions” and thus of assimilating what he calls “punishment” to “retribution”: it is quite pacific that a retributive measure (i) is meant (in principle) to inflict pain (despite hegelian “expiation” objectives) and (ii) is based upon a past offending conduct. 28 I use this term in the absence of a better, to encompass socially “dangerous” behaviours such as the ones of mentally ill people. 29 If only considering the “purposive” dimension of protected interests, one might indeed conclude that incapacitation is an instance of retribution; however, at the level of implementation measures it will be counter-argued that, whilst incapacitation “stops” once the “immobility” of the person is assured, “retribution” goes further to inflict “additional” harm. That there is a borderline, however, between “mere” immobility and “harm”, and where it is, are highly controversial matters. 30 “Restorative retributions” (and “retributive restorations”) are but one example (VAN DE KERCHOVE and TULKENS 1997:424).

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derive from factors extrinsic and/or intrinsic to such conduct. In the first case, conduct is disqualified (and punishment justified) because it creates harm to someone else31. In the second case, conduct is condemned as such. By contrast, dangerousity cannot be regarded as an ultimate source of justification. Danger is a “relational” notion: it implies (actual) probability of a (future) prejudicial event. To the question “danger of what?” one must answer by referring – in the realm at stake – to any of the two ultimate justifications (or both)32. For this reason, in the following I will exclusively focus on “extrinsic” and “intrinsic” evilness.

Though in practice it is likely that both justifications are combined (their relative weight changing), “purely” harmful and “purely” immoral acts can be, and are positively, conceived: in the form of (civil) strict liability and of (penal) “enforcement of morals”33. I shall however endorse a more moderate criterion of distinction. For it is patent – as long as criminal law is based upon “fault” (“imputability”) – that “purely” harmful acts can never be the object of penal repression. What makes such acts – e.g. a physical aggression – “morally wrong”, is both the damage they cause (understood as a priori immoral) and the author’s subjective attitude. It is in this sense that “extrinsic” evilness will be used: the central notion being harm, the other notions pivoting around it34. Hence, and in order to determine the pertinence of such justification in a concrete case (as is our task), both “caused harm” and “harmful act” must be ascertained35 - we shall do so, respectively, under (3.1) and (3.2).

Conversely, acts can be “purely” immoral either due to objective or subjective intrinsic characteristics. It is important to stress that it must be only such factors in order not to trespass the realm of “extrinsic” evilness (in other words: the action must not cause harm). An action can be disqualified (simply) due to its illegality (immorality); alternatively – though admittedly related – emphasis may be put on the author’s moral responsibility.

3. EXTRINSIC EVILNESS AS JUSTIFICATION (“HARM-PRINCIPLE”)

3.1. The globals’ need for “Sicherheit” The globals appear to have something to impute (imputar?) to the locals, when justifying

neutralisation: very simply put, globals strive towards security, and it is the locals who allegedly create a climate of unsafety incompatible with the globals’ needs. Bauman very accurately points out that the discomfort (“harm”) felt by the globals can best be described by the German term “Sicherheit”, which “grasps all three experiences (of safety, security and certainty) and so refuses to accept their mutual autonomy which English speakers are

31 Cf. MILL 1859. 32 This is not to deny that dangerousity underlies prevention as a function (vide supra). It is to assert that even such concept is not placed at the same logically (axiologically?) ultimate level as the above-mentioned ones. 33 Vide infra (4). This, by the way, explains the frequent characterisation of the relations between law and morality with two concentric circles, the broader one being the one of morality. At least within the justificatory discourse, a representation by two secant circles does not make sense: how to justify – conceiving justification as an essentially moral endeavour – punishment of conducts morally correct (in all senses), but legally wrong? 34 This is the case of an argument of the type: “this conduct is morally wrong because it causes harm”, and not of the type “this conduct is morally wrong in addition to causing harm” (even if it did not cause it, it would be wring; but now it is with more reason). 35 Similarly to the three-layer conditions of extra-contractual liability within the civil codes (cf. arts. 3XX, 1382 and 1383 of the Code Civil; arts. 823 and 826 of the BGB; or arts. 1902 et seq. of the Código Civil).

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36linguistically trained to take for granted” . Each of the “three experiences” merits some clarification. “Certainty” refers to a rather formal level: it is the clarity of game-rules that is at stake, which, in turn, renders uncertain the outcome of any move. “Safety” is connected with physical indemnity and, by extension, to property (“the body-space extension”). “Security”, finally, is placed at an intermediate level: security is predicated of choices, but also used in a broader sense, to encompass all the three. It is in this large sense that Bauman uses “security” in a famous paragraph that is worth reproducing:

“...whether Sigmund Freud was right or wrong in suggesting that the trading-off of a considerable part of personal liberty for some measure of collectively guaranteed security was the main cause of psychical afflictions and sufferings in the ‘classic’ period of modern civilisation – today, in the late or postmodern state of modernity, it is the opposite tendency, the inclination to trade off a lot of security in exchange for removing more and more constraints cramping the exercise of free choice”37.

Thus, post-modern “social contract” (signed, in principle, by the globals) gives priority to free choice over security. “Free” and “secure” choice are opposed goals, and globals have decided in favour of the first. Does this mean that they undervalue the other? Indeed, nothing could be more misguided. For it is precisely this absence of “Sicherheit” that “generates the widespread sentiments of fear and anxiety”38. The same anxiety that makes globals nostalgic of the “safe heaven of territoriality” thus motivating their claims of “human proximity”... equally originates the neutralisation-rush. However, does it also justify it?

3.1.1. Inconsistency at the level of instruments (“neutralisation”) In the following sections I shall offer a two-fold argument against the sustainability of

neutralisation as purporting to satisfy the Sicherheit-“need”. In the present section I will criticise the (instrumental) cause-effect connection between neutralisation as a means and Sicherheit as an end; below (3.1.2) I shall examine the internal consistency of the end itself; an analysis that will be pursued under (3.2), where I will deal with the moral opposability of the globals’ pretension.

3.1.1.A. “Neutralisation” is not only inefficacious...

In the sociological realm, “efficacy”, as opposed to “effectiveness”, means the actual achievement by a measure of its ideally proposed goal39. Non-efficacy thus refers, a contrario, to any failure to do so by the relevant measure. Possible side-“effects” are disregarded at this stage; the initial goal is isolated.

When this scheme is applied to the use of neutralisation in today’s societies, it becomes patent that the (triple) goal of Sicherheit is far from being attained. Bauman stresses that safety – probably due to its more “material/physical” character (again: proximity) – monopolises (global) public opinion, thus eclipsing the other two sub-goals: “A lot of tension accumulates around the quest for safety. And where there is a tension, political capital will surely be 36 BAUMAN 1998:117. 37 Ibid.:116 (emphasis added). 38 Ibid. 39 Efficacy-research, in the field of legislation, enquires after the actual achievement of the legislator’s (substantive) goals, by contrast to actual compliance with the relevant law, which is revealed by its “effectiveness” (cf. ROTTLEUTHNER 1987:54).

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40spotted by bright investors and expedient stock-brokers” . It is, moreover, a “happy coincidence” for politicians that safety is by far the most reachable of the sub-goals; in addition, it can be pursued vociferously and vigorously (“spectacularly”) whereas worries about certainty and security are “intractable”41. This would explain the growing spectacularity of punitive operations, coupled with a plastic dissemination of “contagious emotions” which, moreover, weaken the measures’ effectiveness42. As a consequence, not only “safety” is not properly promoted, but also “Sicherheit will gain little as a result, but the ranks of voters swell”43.

3.1.1.B. ... but counter-productive Uncertainty and insecurity not only remain untouched, but “public anxiety” even

increases due to the promptness, versatility and harshness of mediatised crime-fight. The overall effect is thus a “self-propelling fear”44. In this context, over-exaggerated and asymmetric “justice of proximity” plays an important role. Local security is increasingly “mise en scène” by segregating “unsafe” urban zones from “safe” ones45 - a policy that involves criminalisation of small incivilities or even “infra-delictual disorders” (“tolerance-zero”)46. You cannot advertise a medicine without informing about the disease (and stressing its seriousness!).

A variant of the above counter-sense can be found in the defensive behaviour neutralisation engenders amongst the “rejected”. The “out-of-order”, quite naturally (and with independence of the justifiability of their exclusion) opt for “rejecting the rejectors” – neutralisation thus adds “to the image of crime the traits of the criminals’ inherent proclivity to recidivism”. This, in turn, only strengthens the feeling of threat and thus converts neutralisation strategies into a “self-fulfilling prophecy”47.

3.1.2. Confusion at the level of ends (“legal certainty”) The argument developed under this section is logically alternative to the previous

considerations on the non-suitability of neutralisation as an instrument to achieve “Sicherheit”. The point we shall make here is that, even though neutralisation could reduce “Unsicherheit”, the goal as such (“security”) has no autonomous worth.

40 BAUMAN 1998:117. 41 Ibid.:117-118; or, in any case, they are far more costly and time-wasting to attain (something that goes against the wish for instantaneity). Market-forces are the more unpredictable the more extraterritorial (and extra-temporal) they get – there is hardly “anything the hopelessly ‘local’ governments can do” (ibid.). 42 And, a fortiori, civil society’s autonomy (“l’État ne se substitue plus aux victimes mais s’identifie à elles”); cf. GARAPON 1996:21-22. 43 BAUMAN 1998:118. 44 Ibid.:119. 45 A phenomenon which has been called “desurbanisation” or even “counter-urbanisation” (CRAWFORD 2001:13). 46 Ibid. Such impotence of authorities is illustrated by Bauman: “In the world of global finances, state governments are allotted the role of little else than oversized police precincts; the quantity and quality of the policemen on the beat, sweeping the streets clean of beggars, pesterers and pilferers, and the tightness of the jail walls loom large among the factors of ‘investors’ confidence’” (BAUMAN 1998:120). 47 Ibid.:126.

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3.1.2.A. “Legal certainty” as the globals’ aim...

The worry about “security” in the realm of law has almost accompanied the foundation of the (ancient Greek) “polis”. It will be remembered that the platonic Socrates rejected Crito’s invitation to flee from an imminent execution of an unjust sentence on the grounds that laws had given him all he had enjoyed until that moment48. What is implied in this attitude is that law, by itself and regardless of (occasional?) substantive injustices it may create, has an intrinsic value. In the Socrates’ case – and although this “value” can mean several things – it reflects the idea of a permanent structure enshrined in law, impermeable to time changes and application contingencies. Later in History, however, theoreticians of the modern State used the notion of “security” in a much more substantive sense. The reason the reason is simple: vis-à-vis a natural state of bellum omnium contra omnes (religion wars as follow-ups of the collapse of the moral authority of medieval Christianity), the primary aim was to secure life, physical integrity, freedom and/or property49. Purely “safety”-concerns, we could say.

It was only with the triumph of liberalism – and the dawn of natural law – that the centre of concern shifted from “security through law” to “security of law”50. This “new” security is now “formal”: it is the “certainty”, the reliability of law itself. A finally hegemonic social class – bourgeoisie – does not have “substantive” worries anymore (as it had some centuries ago, when the “social contract” was still in its negotiating phase): its aim is to maintain the “acquired rights”. Such rather conservative motivation in the exaltation of law’s certainty can clearly be appreciated in the work of one of its most prominent defenders in that time: Jeremy Bentham51. A century later, Gustav Radbruch retook the discourse around the axiologic character of “formal” security, of which he has been considered “the last great theoretician”52. Starting from a moral relativism, Radbruch argues for “security of the law itself” as the ultimate value of a legal order53.

At this point if might be worth returning to the globals. For, what is that which they are supposed to strive towards? Mere material “safety” (security through the law) would be an answer incoherent with the formal component enshrined in the notion of “Sicherheit” (as well as with the fact that reduction of “unsafety” has not served at palliating “uncertainty”; vide supra 3.1.1.A). What generates “anxiety” seems to be, at least in great part, formal uncertainty: the unstable, changing, “flue” character of a “network law” (in a “network economy” and a “network society”), the price social order has paid in exchange for “flexibility”54.

3.1.2.B. ... and its lack of autonomous moral value 48 PL ATO (Crito): 138 et seq. 49 Cf. BODIN (Republic); HOBBES (Leviathan) and LOCKE (Treaty). 50 GARCIA MANRIQUE 2000:39. 51 Though not always explicitly, Bentham can be said to treat “certainty” as the primary aim of legislation, thus subordinating to it the goals of “subsistence, abundance and equality” (BENTHAM (Treaties):105 et seq.; GARCIA MANRIQUE 2000:46-47). In particular, equality is expressly opposed (and sub-ordinated) to certianty, the latter understood as “the maintenance of the distribution of rights ‘the way it is established’” – a way that is obviously unequal, especially with regards to property rights (the major concern of Bentham) (ibid.:49). 52 GONZALEZ VICEN 1979:381. 53 RADBRUCH 1932:96 passim. 54 It is the “fragilité forte du droit”, the “force-faible du réseau” (VOGLIOTTI 2000).

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The question concerning the independent moral worth of law’s “form” has been the object of a long-standing debate amongst legal philosophers and theoreticians. In recent times, the issue can be said to have been revived by Lon L. Fuller’s famous plea for the existence of an “internal morality of law”55. According to him, law’s compliance with (all) the eight formal requirements he enumerates as constituting the “internal morality of law”56 are not only precondition for law’s existence, but also impregnate law of a certain (albeit partial) moral excellence. Both insights are intertwined: from the fact that (i) “internal morality of law” is a precondition for law’s existence, and that further (ii) “internal morality of law” has moral character, it follows that (iii) any legal system, regardless of its “substantive aims”, has a certain moral worth. It is “legal certainty” that “moralises” law, and thus gives rise to an a priori obligation to obey it. And – we can add: is constitutes a goal to fight for, it can hence be qualified as a “need”.

However, the arguments Fuller uses to support part (ii) of his thesis have been, in my view, convincingly rebutted by several critics. I shall only sketchily refer to the arguments concerning the intrinsic value of legal certainty (what has been called legal certainty’s “automorality”): amongst the bulk of possible arguments, these constitute the strongest ones57. And, in great part, they have been developed as such and detailed by subsequent authors.

There is, first, the thesis maintaining that law’s “form” has moral value due to its realisation of “formal justice”, the latter consisting in “treating the like alike, and the different differently, in proportion to their difference” (Aristotle). Law, by the sole fact of acting through general categorisation and abstraction (the essence of a “rule”), clearly complies with such formality. Since “formal justice” is a part of “justice”, which has per definitionem moral worth – so the argument goes – “formal justice” as well is valuable, albeit in a lesser degree58. This view cannot, however, be endorsed. For one thing, it is a logical mistake to attach qualities of the “whole” to any of its “parts”. For another thing, and more importantly, Radbruch himself (who did not use this specific argument) had explained that justice, precisely because it is a formal idea (structure), requires its completion (of the “form”) by substantive contents specifying (a) the criteria of difference and (b) the corresponding “proportion” of unequal treatment59. It is rather clear that a formally impeccable law implementing racial discrimination is not even “minimally” moral, nor a-moral, but straightforwardly “immoral”.

55 FULLER 1969. 56 Such conditions are: generality, promulgation, proactivity, clarity, non-contradiction, requirement of possible conduct, constancy and congruence between official action and declared rule (ibid.:39 et seq.). For similar conditions have been proposed by different authors (Dicey, Raz...) which roughly amount to the same. 57 Cf. GARCIA MANRIQUE 2000:103. I am thus neglecting the argument that holds that legal certainty has moral worth since it is the necessary form which law’s (eventually) just substantive aims would have to adopt (FULLER 1969:155; cf. also RAZ 1979); as well as Fuller’s rather utopic suggestion that perverse law never fulfills the requirements of the ‘internal morality of law’ (FULLER 1969:157; cf. the criticism by Hart in HART 1965). Both arguments are rather weak, and can be called “effectiveness thesis” and “conditioning thesis”. We shall thus concentrate on the “automorality thesis”. 58 ESCUDERO 2000:107. 59 RADBRUCH 1948:33-34.

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60Secondly, the “rule of law” – in Spanish, “imperio de la ley” – has often been said to limit the arbitrariness of the “government by people”. Arbitrariness being considered as morally rejectable, it has been concluded that legal certainty is desirable. This is, however, too early a conclusion. For it is not clear what is meant by the immorality of arbitrariness; more precisely, the notion of arbitrariness appears rather blurred. Roughly, it refers to the officials’ non-subjection to the law: to their actions “ultra vires” (which, before the principle of legality was consecrated constitutionally, was the rule in many Western States). There may be, at least, two different things wrong with that: either the lack of foreseeability (to which I shall refer below), or the possibility of committing immoral acts thus relying on the deviation. I shall refer right below to the former, since it is part of the third and last argument. Regarding the latter, the confusion becomes quite patent: one can easily imagine dissenting officers within a dictatorial regime who, by vulnerating the law, create (some) justice. In other words: unless the substantive correctness of any law is presupposed (a rare position even amongst positivists), compliance or non-compliance does by itself not tell anything about an act’s moral rightness.

Finally, it can be hold that previsibility itself, inherent to any system of social control by means of rules61, treats people as autonomous beings thus recognising their freedom of choice (one can decide to comply or not; if not, he knows beforehand the price he will have to pay). Since autonomy has moral worth, legal certainty, thus favouring it, would be morally right, too62. This must be rebutted considering Matthew Kramer’s distinction between “cognitive autonomy” and “moral autonomy”. The first one would be a feature intrinsic to human nature: essentially, it is the ability of “saying no”. The second, by contrast, constitutes a “would-be”, a normative concept: people should be able to lead an autonomous (self-determined) life (this is the core of most contemporary political philosophy currents). Both are interrelated, since “cognitive” autonomy (understanding rules and being able to decide about compliance) is a precondition for “moral” autonomy; however, they are definitely not the same, and a legal system can be said to rely on the former, but not necessarily to promote the latter63. The first serves at definition of a legal system; the second, at its evaluation.

The conclusion of this argumentation is the following: legal certainty has no moral value and can thus not justify (at the risk of making it senseless) any claim based on a “need”. If such claim is brought – if law is evaluated – it must be done on the basis of the substantive aims of a particular system (and of the means it uses by attain them)64.

3.2. The locals’ attempt against “Sicherheit” The globals’ crusade in defence of “certainty” becomes thus meaningless. Even if the

locals really reduced the certainty of law, this by itself would not create any “harm” for the globals. Their alleged “need” – the source of the “harm” – must be searched within the 60 An Anglo-Saxon term that has been given manifold meanings GARCIA MANRIQUE 2000:81 et seq.) but which, to the present effects, can be equiparated to legal certainty. 61 And consecrated within the penal realm in the aphorism “nulla poena sine lege” (principle of non-retroactivity in malam partem). 62 ESCUDERO 2000:208. 63 “Law can exist because human begins are autonomous in the first sense, and ought to exist to achieve that they were autonomous in the second sense” (GARCIA MANRIQUE 2000:128). 64 Ibid.:144.

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contents of the law for whose certainty they fight. If the above considerations are accepted, it is only coherent to strive towards legal certainty provided the values law realises are striven towards, too. Our next task is therefore to consider how the globals’ material “safety” (fundamental rights?) can be threatened by the locals’ potentially “offending conduct”.

In my view, two hypotheses can be still made regarding the “evilness” of the locals’ conduct: one connected to the notion of (substantive) “harm”, the other relating to the behaviour’s intrinsic immorality (which, as such, creates no perceptible harm). I shall deal with the first in the present section, and leave the second to section (4).

An example may serve as illustration for the conflicting nature of globals’ and locals’ “material” interests: the “flexibility of the labour market” which inspired an article by Bordieu that is, in turn, used by Bauman as reference point for his argument. Bordieu was stricken by the following statement made “matter-of-factly, almost perfunctorily, the way one speaks of obvious and banal truths”, by H. Tietmeyer (President of the German Federal Bank):

“Today’s stake is to create conditions favourable to the confidence of investors”, which, amongst other things, will require “dismantling the rigidities of the labour market”65.

“Flexibility”, as Bauman notes, is an ambiguous notion: for “flexibility” on the demand side (of the labour market), meaning “freedom to move wherever greener pastures beckon”, correlatively implies “rigidity” (immobility) on the supply side. Indeed, “conditions favourable to the investors” imply, first of all, “predictability” – as the pre-eminent expression of an underlying, substantive asymmetry. The more flexible one side, the more uncertainty is introduced into the other’s condition and the narrower its scope of choice. In short, the wish of “formal certainty” encodes what can substantively be called “domination”66.

A similar reading is made by several analysts of State policies within the area of “community safety”. “Overregulation” not only means that legislators fear “to forget something”67 68 – it leads to a selectivity in the enforcement of laws . One could thus talk about an “over-application” as correlative of an “under-application”. The “over-application” concerns – as pointed out – “specific individuals within symbolic places”; concretely, people “who surprisingly are not the contemporary mass murders or rapists, but are the victims of globalisation: the economically marginalised, socially excluded and alienated youth”69.

It seems, thus, that the locals’ attempt against the globals’ “Sicherheit”, rather than deriving from any specific action undertaken by the former, is a mere consequence of their existence within the same society. In other words: what seems to be at stake is, from a contractualist point of view, the “equilibrium of rights and burdens”70 – not any “offensive

65 BAUMAN 1998:103-104. 66 “The side whose range of behavioural choices is wider introduces the element of uncertainty into the condition of the other side, which that side, facing a much narrower choice or no choice at all, cannot reciprocate. The global dimension of the investors’ choices, when set against the strictly local limits of the ‘labour supplier’, provides that asymmetry which in its turn underlies the domination of the first over the second” (BAUMAN 1998:105; cf. also 112). 67 GARAPON 1996:32. 68 For, as Crawford notes, a rigorous application of all laws is no longer possible (CRAWFORD 2001:18). 69 Ibid. 70 RAWLS 1971.

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conduct” that goes beyond the rights/duties distribution inherent to life in common. The latter is the categorical imperative of social contract theory:

“I Authorise and give up my Right of Governing my selfe, to this Man, or to this Assembly of men, on this condition, that thou give up thy right to him, and Authorise all his Actions in a like manner”71.

In conclusion, if the globals’ claim consists in demanding an asymmetry in social rights and burdens for the mere sake of egoism (exploitation), only two considerations can be made. First, that such claim is rational. Second, however, that it is immoral. Neutralisation, as a criminal punishment, can thus not be justified by appealing to the creation of a “harm” which is either not apprehensible or, if actual, is not morally wrong.

4. INTRINSIC EVILNESS AS JUSTIFICATION (“ENFORCEMENT OF MORALS”)

The argument that rests to the globals, once discarded the appeal to “harm”, is that there is something wrong with the locals’ conduct in itself. Justification of punishment would thus have to rest either on the intrinsic immorality of the conduct in question, or on the authors’ subjective guilt. In the following, I shall consider both aspects together, since I understand that a strict separation would contravene the most elementary logic of penal law72.

4.1. From “social disintegration” to critical morality The debate within (but not only) legal philosophy regarding the legitimacy of the use of

State coercion to promote a certain conception of morality regardless of considerations of “harm” (“enforcement of morals”), was revived during the last century, especially as a result of the well-known “Hart-Devlin” controversy, whose echoes can still be felt. Lord Patrick Devlin became famous (at least in this scientific realm) through his public condemnation of the “progressive” ideas expressed by an English legislature commission which had elaborated de lege ferenda a proposal to de-penalise some sexually related private actions (such as homosexual relations between consenting adults)73.

Starting from the insight that “criminal law (...) is based upon moral principle”, Devlin supported the view that morality, as an essentially public issue, could and had to be enforced by means of the law. According to him, a shared morality is the bond that ties society’s members together: “without shared ideas on politics, morals, and ethics no society can exist”74. He furthermore asserted that there was (amongst his contemporaries) a “collective judgement” that condemned private homosexual intercourse. Such collective feeling would be so strong as to incarnate (part of) the “fundamental agreement about good and evil” upon which a society is based: with the consequence that “if the agreement goes, the society will disintegrate”75. It is easy to conclude from such premises the need for law to act in defence of 71 HOBBES (Leviathan):227 (emphasis added). 72 I.e.: to talk about “guilt” requires performance of an “objectively wrong” conduct – or, at least, the intention to do so. This latter instance, however, cannot constitute a crime, since criminal law does not (cannot) repress psychological states. Conversely, “purely” objective wrongness without intention falls – so far – within the realm of civil law (and there, still, with several restrictions). 73 Cf., e.g., DEVLIN 1977 (this article is taken from Devlin’s 1965’s book “The Enforcement of Morals”); the target report is the “Wolfenden Report” of the “Committee on Homosexual offences and Prostitution”. 74 DEVLIN 1977:78. 75 Ibid. (emphasis added).

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society, “to preserve morality in the same way as it uses [law] so safeguard anything else that is essential to its existence”76. In a similar sense goes Durkheim’s approach to crime as an offence against collective feelings representing “l’état concret des moeurs” that is at the basis of society’s mechanical solidarity77.

The above quotations may rise a doubt regarding the actual separation of the Millian “harm-principle” and Devlin’s “enforcement of morals”: after all, it is ultimately the harmful character of immoral behaviours that justifies repression. It is the threat that they will disintegrate society. This point may be true, and has been implicitly corrected by critics of Devlin’s position. I say “implicitly” because the main target has been the pretended cause-effect relation between social morality and society’s permanence. Hart was probably the most radical detractor: Devlin was simply resting on “a confused definition of what a society is” thus identifying a society with its morality78. However, even if granting such correlation of society and morality, Hart pointed out that this was far from justifying that a society was entitled to take the steps necessary to preserve its organised existence. In Hart’s words, “our question is one of critical morality about the legal enforcement of positive morality”79. Or: whether it is legitimate for a society to preserve its existence by imposing a certain moral view depends on the “value” (quality) of such moral view. A meta-judgement is required, that tells us about the correctness of society’s actual judgement.

What is the same: the “enforcement of morals” is a matter of “general principles of critical morality”80. As such, we shall try to discuss it below. Only the implementation of (critically) acceptable (social) moral principles has a chance of being justifiable.

4.2. A (critical) plea against (social) morality That there is deep consensus amongst the globals in relation to the immorality of some

behaviour of the locals is an hypothesis. Whether such collective state of mind would be morally justified, is what will occupy us next.

The question to be answered is in what would consist the condemned “behaviour”. Again, only hypotheses can be presented which, however, appear rather realistic if compared with documentary evidence (and day-to-day life experience). N. Christie points out that a “remarkable trend in our modern society is to give the meaning of crime to more and more of what is seen as unwanted or at least dubious acts”81. At the same time, there is a talk about

76 Ibid.:79. 77 DURKHEIM 1973:64. By contrast to Devlin, Durkheim does not include amongst such postulates of social morality any condemnation of inherently private affairs. The structure of the argument, however, remains pretty much the same. 78 “[Devlin] appears to move from the acceptable proposition that some shared morality is essential to the existence of any society to the unacceptable proposition that a society is identical with its morality as that is as that is at any given moment of its history, so that a change in its morality is tantamount to the destruction of a society” (HART 1963:38). 79 HART 1963:43. 80 It is remarkable how Hart, a legal positivist himself, shows a convinced distrust for positive morals (and, consequently, democracy), thus relying in a more or less a priori (objective) conception of the truth: “In his reaction against a rationalist morality and his stress on feeling, [Devlin] has I think thrown out the baby and kept the bath water; and the bath water may turn out to be very dirty indeed” (HART 1977:86). 81 Quoted at BAUMAN 1998:107.

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“deviant alterities” and “estrangement of the unknown” within the framework of contemporary safety policies82. One might wonder if there is any substantive difference between “the unwanted” and “the unknown”, considering that “when personal familiarity prevails in daily life (...) we would not apply the categories of penal law (...) because we know too much... In that totality of knowledge a legal category is much too narrow”83. A negative answer is further supported by the growing rates of world population, as well as by a lesser and lesser “cultural density” within one territory resulting from globalisation. Garofalo’s hypothesis that certain people have an immoral “deviant personality” seems to have been revived in our days; only, Garofalo’s resignation in finding out the “substratum of that anomaly” has been substituted by a straightforward indifference.

If all this is true – and I seriously doubt that it is not – we must admit that “locals” is an artificially created category established by those whose believe in, and thus promote, the superior value of a “life on the move”. An ideal whose realisation as of necessity requires as a counterpart the “immobilisation” of some – who maybe endorse contrary values, or have never been give the chance to enter the elitist database. These latter factors (some voluntary, some involuntary, but all a priori legitimate) generate the “difference” between globals and locals. Such as light could not exist without shadow, globals’ lifestyle needs the presence of difference: it needs it to exude it, to affirm itself by contrast to the failed life. “Difference” is thus created; morally “neutral” factors are attributed moral meaning to the detriment of those who do not decide about the attribution.

My aim is not emit absolute judgements about the arbitrariness of a certain moral platform from another self-crowned critical morality – especially not in the age of pluralism. I can thus only rely on my own intuitions, which are largely identical to the ones expressed by the commented authors. From this viewpoint, the globals’ (our) “selective intolerance” does not find any moral justification: it cannot be conceived as a reaction against “harm”, and even less as founded on pretended intrinsic evilness of an arbitrarily shaped difference. What is tried to be “neutralised” is, as Bauman recognises, not so much an alien threat but the “public anxiety” itself84.

5. CONCLUSION: THE (MORAL) NEED FOR A “RECONFIGURATION OF POWERS” “Neutralisation” as a function cannot be morally justified. Accordingly, and due to the

interconnection between function and justification, it cannot be considered as a function of punishment (neither in the classic, nor in any contemporary sense) at the risk of denaturalising the foundations of criminal law (more: of law itself). Neutralisation is a de facto strategy, the top of an iceberg of incoherences revealed by a legal system which has not yet been capable to endorse (apply) the changed paradigm that corresponds to its changed reality.

Indeed, this is the unique possible reading of the described phenomena. Our society is said to be “uncertain”: this is true, from a structural point of view, because spatio-temporal compression is a component one cannot ignore. It is, however, also uncertain at a conjunctural level. As happens in the dawn of scientific revolutions,

82 CRAWFORD 2001:20. 83 Quoted at BAUMAN 1998:107. 84 Ibid.:115.

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“in the presence of anomalies (of dissociations between theory and reality), the scientific community does not immediately question the traditional paradigm, but tried to conciliate the model with reality through integrations of the theory, specially designed at solving particular problems (‘hypotheses ad hoc’)”85.

We have mentioned quite a few of such “ad hoc” anomalies, forced and artificial extensions of the old paradigm’s solutions to meet newly arisen problems: overregulation coupled with selective application (in parallel to the depenalisation/flexibilisation discourse), social exclusion (in parallel to the subjective rights’ emancipation), massive use of the prison (in parallel liberal cult to free choice), translation of risks to the side of the ‘labour supply’ (in parallel to the exaltation of certainty), law of the strongest (in parallel to revival of the republican dogma of the “volonté générale”)86. In short: an impotent State sovereignty, confronting its own limitations, desperately tries to symbolically reaffirm itself through spectacular, self-defeating and, in addition, discriminatory measures:

“A show of punitive force against individuals is used to repress any acknowledgement of the state’s inability to control crime to acceptable levels. A willingness to deliver harsh punishments to convicted offenders magically compensates a failure to deliver security to the population at large”87.

88The “old paradigm” thus does not only function as an “epistemological obstacle” , for the same reason that a paradigm does not only serve heuristic purposes, but may deform reality in case of being too strict. An authentic “reconfiguration of powers”, assuming the challenges of the “new paradigm”89, is long overdue. Inconsistencies at the level of facts only reveal deeper inadequacies at the level of institutions and, altogether, they signalise a growing abysm between the theory proclaimed from within the academic world (adjusted to reality) and the actual configuration of powers (adjusted to the ancient paradigm).

Legal theoreticians of the XXI century are entrusted a crucial role: the one of designing the guiding principles of a reorganised State, of a reorganised criminal law90. This, as well as most “instrumental” questions regarding law, is impregnated with moral relevance. Such as both “ethics of conviction” and “ethics of responsibility” are value-laden, but differentiated at the level of coherence91, so too the renewed ethic of penal intervention will have to combine traces of moralism and instrumentalism92, thus permitting coherence both at a factual and at an 85 VOGLIOTTI 2000:153 (n. 26). 86 GARAPON 1996:23-28. Crawford writes: “The position of the state within this emergent order of crime and security maintenance expresses itself (...) most notably through ambiguity and political uncertainty (...). Limitations of traditional criminal justice – police and punishment – are recognised in certain instances only to be discounted or ignored in others. This dualistic denial and recognition produce volatile shifts in the state’s presentation of its own capacity for effective action in crime control” (CRAWFORD 2001:27). 87 GARLAND 1996:460. 88 BACHELARD 1980:13 et seq. 89 Cf., for all, VAN DE KERCHOVE and OST 2000. 90 Cf. the interesting suggestions made by Crawford of a dialectical integration of “State”, “market” and “community”, as incarnations of, respectively, welfarism, neoliberalism and communitarianism. 91 “Ethics of responsibility” implies balanced consideration of short- and long-term consequences from a moral point of view. In this sense, it is often argued that the weberian distinction (cf. WEBER 1919) amounts rather to a matter of coherence than to a question of morals. 92 VAN DE KERCHOVE 1994.

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axiologic level. And “coherence” is no more than an incarnation of justice, understood as equal treatment for equals... regardless of the application scale. Hence, as Bauman denounces,

“Robbing whole nations of their resources is called ‘promotion of free trade’; robbing whole families and communities of their livelihood is called ‘downsizing’ or just ‘rationalisation’. Neither of the two has ever been listed among criminal and punishable deeds”93.

More plastically, this idea finds expression in the words of Chaplin’s “Monsieur Verdoux”, interviewed by a journalist just before being executed for individual authorship of a series of crimes:

Journalist: You will have to admit that a criminal always pays... Verdoux: No, sir, I do not agree. J: What do you mean? V: In order to have success, one must be organised. J: You, the tragic example of a life of crime... V: How can it be that you search an example of a life of crime in our times? P: You have given it, by stealing and murdering people. V: It was my business. P: But the rest of people, we do not such type of businesses. V: I would rather say that the greatest businesses, wars, conflicts, they all are businesses; for

an assassination you become a criminal; for thousands you become a hero, numbers sanctify, my friend”.

* * *

93 BAUMAN 1998:123.

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BBiibblliiooggrraapphhiiccaall rreeffeerreenncceess

ALLEN, F.A. (1981): The decline of the rehabilitative ideal. Penal policy and social purpose, Yale

University Press, New Haven-London, 1981

BACHELARD, G. (1980): La formation de l’esprit scientifique, 11e éd., Vrin, Paris

BAUMAN, Zygmunt (1998): Globalisation. The Human Consequences, Polity Press, Cambridge, 1998

BENTHAM, Jeremy (Treaties): Tratados de legislación civil y penal, trad. R. Salas, Editora Nacional, Madrid, 1981

BODIN, Jean (Republic): Los seis libros de la República, trad. P. Bravo, Tecnos, Madrid, 1985

COMMAILLE, Jacques (2000): “De la <<sociologie juridique>> à une sociologie politique du droit”, in J. Commaille, L. Dumoulin and C. Robert (dir.), La juridisation du politique. Leçons scientifiques, LGDJ, coll. <<Droit et Societé. Recherches et travaux>>, Paris, 2000

CRAWFORD, Adam (2001): “Towards a New Reconfiguration of Powers? Local Orders and the Prospects for Governance Through Partnership” (forthcoming)

DEVLIN, Patrick (1977): “Morals and the criminal law”, in R. Dworkin (ed.), The Philosophy of Law, OUP, New York, 1999

DURKHEIM, Émile (1973): De la division du travail social, PUF, 9e éd., Paris

ESCUDERO, Rafael (2000): Positivismo y moral interna del derecho, Madrid, Centro de Estudios Políticos y Constitucionales

FOUCAULT, Michel (1975): Surveiller et punir. Naissance de la prison, Gallimard, Cher, 2001

FULLER, Lon L. (1969): The Morality of Law, Virginia, Yale University Press

GARAPON, Antoine (1996): La république pénalisée, Hachette, Paris, 1996

GARCIA MANRIQUE, Ricardo (2001): El valor moral de la seguridad jurídica, Barcelona (forthcoming)

HART, H.L.A. (1963): Law, Liberty and Morality, OUP, London

HART, H.L.A. (1965): “Book Review: The Morality of Law (Lon L. Fuller)”, in 78 Harvard Law Review 1281-96

HART, H.L.A. (1977): “Immorality and Treason”, in R. Dworkin (ed.), The Philosophy of Law, OUP, New York, 1999

HOBBES, Thomas (Leviathan): Leviathan, London, Penguin Classics, 1998

van de KERCHOVE, Michel (1994): “Pour une éthique de l’intervention du droit pénal, entre moralisme et instrumentalisme”, in FUSL, Variations sur l’Étique, Publications FUSL, Bruxelles

van de KERCHOVE, Michel (1997): “Les frontières des normes pénales”, in Ph. Robert, F. Soubiran-Paillet and M. van de Kerchove, Normes, normes juridiques, normes pénales. Pour une sociologie des frontières, Harmattan, Paris, 1997

van de KERCHOVE, Michel; TULKENS, François (1997): Introduction au droit pénal. Aspects juridiques et criminologiques, Story-Scientia, éd. Revue et augmentée, Bruxelles, 1997

- 21 -

van de KERCHOVE, Michel; OST, François (1999): “Le présent, horizon paradoxal des sanctions réparatrices?”, in Philosophie du Droit et Droit Économique, pp. 477-492

van de KERCHOVE, Michel; OST, François (2000): “De la pyramide au réseau? Vers un nouveau mode de production du droit?”, in R.I.E.J. 2000.44

KERNER, H.J. (1994): “La neutralisation est-elle un objectif acceptable?”, in A. Tsitsoura (ed.), Les objectifs de la sanction pénale. En hommage à Lucien Slachmuylder, Bruylant, Bruxelles

LOCKE, John (Treaty): Ensayo sobre el gobierno civil, trad. A. Lázaro, Aguilar, Madrid, 1981

MILL, J. Stuart (1859): On Liberty, ed. G. Himmelfarb, Penguin, London, 1997

PARKER, H.L. (1968): “The meaning of punishment”, in H.L. Parker, The limits of the criminal sanction, Standord, 1968

PLATO (Crito): Apología de Sócrates. Critón. Carta VII, trad. E. López, Espasa, Madrid, 1998

RADBRUCH, Gustav (1932): Filosofía del Derecho, trad. J.L. Monereo, Granada, Comares, 1999

RADBRUCH, Gustav (1948): Introducción a la Filosofía del Derecho, trad. W. Rodes, México, Fondo de Cultura Económica, 1998

RAWLS, John (1971): A Theory of Justice, Harvard University Press, Cambridge, 1999

RAZ, Joseph (1979): The Authority of Law - Essays on Law and Morality, Oxford, Clarendon Press (1994)

RENARD, Didier (2000): “L’analyse des politiques prises avec le droit, brèves remarques sur un débat”, in D. Renard, J. Caillosse and D. d. Béchillon, L’analyse des politiques publiques aux prises avec le droit, LGDJ, Paris, 2000

ROBERT, Philippe (1997): “Essai de construction d’un paradigme pénal”, in Ph. Robert, F. Soubiran-Paillet and M. van de Kerchove, Normes, normes juridiques, normes pénales. Pour une sociologie des frontières, Harmattan, Paris, 1997

ROTTLEUTHNER, Hubert (1987): Einführung in die Rechtssoziologie, Wissenschaftliche Buchgesellschaft, Darmstadt, 1987

TOFFLER, A. (1971): Le choc du futur, Paris, 1971

VIRILIO, P. (1995): La vitesse de libération, Galilée, Paris, 1995

VOGLIOTTI, Massimo (2001): “La ‘rhapsodie’: fécondité d’une métaphore littéraire pour repenser l’écriture juridique contemporaine. Une hypothèse de travail pour le champ pénal”, in R.I.E.J. 2001.46, pp. 141-187

WEBER, Max (1919): "La política como vocación", en El político y el científico, trad. F. Rubio Llorente, Madrid, Alianza

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