Criminal Law Under Socialism, Commonweal, 13th & 19th March 1887, pp.81-82, 90-91.
Republished in The Ethics of Socialism, pp.56-68.
Transcribed by Ted Crawford.
Marked up by Einde O’Callaghan for the Marxists’ Internet Archive.
PROBABLY few persons realise the extent to which crime is reducible to the question of private property. There are few orders of crime which are not traceable directly or indirectly to possession and the desire of possession A broad division may be drawn between animal crimes or those directly springing from a natural appetite such as hunger, desire of self-preservation, sudden anger, lust, &c., and “social” or better “civil” crimes or those springing directly or indirectly from the desire of gain or possession. The two classes doubtless overlap, but are easily distinguishable in their general outlines. In the first place we have the largest and most important section of offences recognised by law, those which may be comprehended under the phrase “unlawful appropriation,” i.e., theft and robbery in all their forms. Here, of course, is a vast body of crime which would be practically impossible in a state of society in which the necessaries and comforts of life were within the reach of all, and when the fact of possession did not carry with it the possibility of surplus-value. Then, again, there is the indecent class of crime. This is largely a consequence of the hypocritical sexual relations at present obtaining, resulting from the institution of monogamic marriage, which is in its turn bared on our existing property-relations – although here matters of pure pathology have properly to be taken into account. Thirdly, we have the description of crime coming under the head of brutal assaults, or malicious injuries (including murder). This last is usually associated with one or other of the two former departments, most frequently, but not always, with crimes against property. Fourthly, must be included perjury or false-witness in all its forms. We shall find that all serious crime (as distinguished from mere misdemeanour, as it is termed, and from political offences) is comprised within these four categories, the first embracing all crimes primarily against property, the three last all crimes primarily against the person, it matters not whether the question of property enters secondarily into them or not.
Now, largely as the present condition of society is directly responsible for crime, and still more largely as it is so indirectly, we can hardly hope that a change of economic condition would do more immediately than efface the crimes directly connected with property. The gradual elimination of the remainder might be effected in the process of the development of the new order, but not entirely at once. We cannot, therefore, treat this question in the snakes-in-Iceland fashion we were able to do when dealing with civil law under Socialism on a previous occasion. But, nevertheless, I take it that the regime of a Socialist administration will involve an enormous change of attitude in dealing with crime. Firstly, it will without doubt reduce to the minimum the number of actions characterised by the law as crimes. Secondly, it will certainly regard the greatest possible consideration for the criminal compatible with the maintenance of social existence at all, as its first duty in the matter. Thirdly, it will assuredly withdraw the right of prosecution from private individuals and vest it wholly and solely in the delegates of society.
The interest of the legal body, so influential in all modern legislatures, is to increase to the utmost the cognisance of the criminal law over actions. In this they are aided and abetted by a number of persons who entertain a pet hobby against particular vices (real or “so-called”), and are always prepared to agitate for their elevation to the rank of crimes. The legal luminaries who assist in this are quite indifferent to the fact, of which they must be well aware, that the wider the range of law-made crime, the greater the chance of innocent persons being, if not convicted at least accused, and their characters thereby blasted. And these, be it remembered, are the gentlemen who are so zealous in defending the law of libel as a necessary protection of character. It is monstrous, they pretend to think, that a man who has done an action deemed discreditable should have it proclaimed on the platform or in the press, but it is a “mere natural” misfortune incident to human affairs that an innocent person should be put to the annoyance and inconvenience of being “hauled up” before a police-court to answer a trumped-up charge, which it may nevertheless be very difficult to disprove to the satisfaction of the public.
Of course, all that these “legal gentlemen” care for, is to maintain and increase the business of the courts, civil and criminal. To such commercial principles are their zeal for the protection of character and the suppression of crime in the last resort reducible. A Socialist society, whose aim would be to reduce the machinery of law to the minimum, would rely for the preservation of public morals precisely on that publicity which the legal crime-manufacturer tries so energetically to suppress for the protection of character. And in the end, he would undoubtedly find this a more powerful agent for the repression of crime than the most elaborately comprehensive code, designed for laying direct hands on the persons of offenders. When there is no interest at stake in the maintenance of judicial machinery, the number of law-made crimes must inevitably diminish.
That a Socialist administration would treat delinquents with the utmost leniency consistent with the existence of society will, of course, not be disputed. The failure of organised brutality as a corrective to crime has been attested over and over again by experience. Were the brutal punishments of earlier phases of society effectual in repressing crime? The panegyrists of modern civilisation are never tired of impressing upon us the great advances made in respect of crime, both as to diminution and treatment. It has been shown constantly that a particular offence has actually diminished on the repeal of brutal enactments bearing on it. Yet, strange to say, these very panegyrists of modern civilisation are frequently the first to cry out for deterrent punishments and long sentences, and to dilate on the maintenance of prison “discipline” (the specious euphemism for the inhumanity practised in our gaols). To convince themselves of the heedlessness of so-called “prison discipline,” they have only to cast an eye on some of the Swiss cantons (notably Geneva), where imprisonment means little more than simple reclusion, and where they will find that even a bourgeois society holds together without any of the acts of brutality and petty tyranny dignified in most countries by the name of “prison discipline.” A brutal officialism and red-tapeism which pay no attention to individual cases must of itself breed crime. The bourgeois moralist should at least be consistent. The chief and, indeed, only real advantage (outweighed by its many disadvantages) which the society of to-day has over that of the Middle Ages, is its relative security from brutal violence, and the relative (I had almost said the co-relative) absence of the more brutal forms of punishment. And the panegyrist of bourgeois society knows this and makes use of it. Of how many a declamatory newspaper leader and platform speech is it not the theme? And yet this same penny-a-liner or platform spouter will often be the first to condemn as sentimentality any protest against the still-existing brutality of our criminal code and prison system. He will be anxious to minimise to the utmost one of the few points wherein modern civilisation can show any sort of real superiority to that of earlier ages. Such the consistency of the advocates of class-society and its methods.
Once more, we have said that a social administration would remove the right of prosecution from the private individual. As to this also I should imagine there could be no doubt, since the right of private prosecution exists only to facilitate recourse to the tribunals in the interest of the legal profession and its offshoots. If an action is injurious to society, it is the plainly the part of society to take the initiative in dealing with it, and not allow individual from his mere lust for revenge to set its judicial machinery in motion. This is also the work of lawyers, whose interest it is to multiply the business of the courts. The individual right of prosecution is a premium on extortion in all its forms and personal malice. As things are at present, the only safeguard a man has against malicious prosecution is the clumsy device of in his turn instituting a prosecution for perjury, which he will probably fail in bringing home to the delinquent.
If we consider now the order of heinousness in the respective classes of crimes enumerated, we must admit that the first, those against property, since they spring directly from a rotten economic condition, must be regarded as (barring specially aggravating circumstances) the most entitled to consideration. It will be scarcely necessary, however, to controvert the absurd notion put forward by a certain section of Anarchists, that the mere individual appropriation of the property of other individuals, or in plain language, theft (such as that practised by the Anarchist heroes, Stellmacher and Duval), has anything whatever to do with Socialism, and the expropriation it advocates. On the contrary, Socialism deprecates robbery in all its forms. The mere change of individual possession of property does not affect the matter in the least. One can very well exonerate the poor man who steals to satisfy his wants; but when a man who has merely satisfied a personal desire of his own at the expense of another person, seeks to cover this individual act with the mantle of principle, an element of hypocrisy enters into the case which tends considerably to exacerbate our opinion of him. Let him steal if he will, but not as an act of devotion to any cause. This, however, by the way. The fact remains that theft and its allied offences are the immediate result of current economic conditions. It is natural that men should seek to obtain the necessaries and comforts of life legitimately, if economic conditions allow them, if not; illegitimately.
The second class of offences named, those connected with sexual matters, from rape downwards, may be viewed from two or three different sides, and are complicated in ways which render the subject difficult of discussion in a work intended for promiscuous circulation between the sees. Here, as in the last case, viz., of theft or robbery, we must be careful in considering such offences, to eliminate the element of brutality or personal injury which may sometimes accompany them, from the offence itself. For the rest I confine myself to remarking that this class also, though not so obviously as the last, springs from an instinct legitimate in itself, but which has been suppressed or distorted. The opinions of most, even enlightened people, on such matters are, however, so largely coloured by the unconscious survival in their minds of sentiment derived from old theological and theosophical views of the universe, that they are not of much value. This is partly the reason why the ordinary good-natured bourgeois who can complacently pass by on the other side, after casting a careless look on the most fiendish and organised cruelty in satisfaction of the economic craving-gain, is galvanised into a frenzy of indignation at some sporadic case of real or supposed ill-usage perpetrated in satisfaction of some bizarre form of the animal craving lust. Until people can be got to discuss this subject in the white light of physiological and pathological investigation, rather than the dim religious gloom of theosophical emotion, but little progress will be effected towards a due appreciation of the character of the offences referred to. 
The two last orders of crime named differ from the preceding, in that they do not have even a basis in natural or social instinct as such. A brutal assault or malicious injury (i.e., one not inflicted in self-defence or under immediate and strong provocation) is purely and simply inhuman-criminal without having any direct palliation in the facts of economic conditions, like crimes against property, or in physiological and (possibly) economic conditions combined, like sexual crimes. Brutality and cruelty so far outweigh in enormity the two last as to seem almost to swallow them up. For instance, in cases of robbery or rape with violence, it is the personal violence accompanying the substantive crimes which naturally excites one’s resentment most; and properly so, although it is the latter of which the bourgeois law primarily takes cognisance. Any crime causing bodily injury or suffering must surely, in the absence of specially palliative circumstances, be regarded as the most deserving of condemnation at the hands of society.
The same may be said of false accusation of crime, an offence which is now classed together with others much less serious, under the absurd name of Perjury, the idea being that its gravamen consists not in the injury done to the innocent but in its insult to the majesty of the law. The unperverted sense could scarcely conceive of any crime more monstrous than this , and yet it is one which is frequently passed over lightly, with the view possibly of not discouraging prosecutions and thereby injuring the legal interest. By being classed under the head of perjury, moreover; it sounds less infamous than it really is, mere perjury being a thing recognised and practised in the best social circles, where the corespondent in a divorce case who has been committing adultery swears he hasn’t, as a mere matter of form.
It seems to us that all the serious offences with which any society would have to deal at present way be grouped under the classes named. Of course there are special orders of offences (such as bigamy) which belong essentially to it and to it alone, and with which we have not dealt. According to one view of the matter, crime may properly be defined as an action proscribed by law, and hence may or may not be immoral, since many of the most laudable actions have been, and are, proscribed by law. But in the foregoing I have confined myself to such crime as would be universally admitted to be directly anti-social – for, of course, it is with such only that the administration of a Socialist commonwealth could be concerned.
What has been said, we should mention, touches only the new society, conceived as having already passed through the transitional period of revolutionary crisis, during which, the one aim of Socialism being the victory of the revolutionary principle, any means which would be conducive to that end would of necessity be adopted. For example, the death-penalty, the systematic maintenance of which as an institution is one of the most outwardly repulsive features of the criminal code of civilisation, might probably have to be held to, as the temporary measure of a revolutionary crisis.
And now a final word on the charge of sentimentalism commonly brought against those who object to the repression of crime by organised brutality. It is clear that the distinction between sentiment and sentimentalism in this connection (which has hitherto been conceived as one of degree merely) has been shifted progressively since the sense of horror at the infliction of pain first came prominently to the fore. What in the seventeenth century would have been complacently admitted as a necessity for the repression of crime would now be regarded with loathing (real or feigned) by the most determined supporter of “deterrent” punishments. The notion that there is any fixed point at which justifiable sentiment ends and sentimentalism begins is therefore plainly absurd. But that the distinction has a meaning I am not disposed to deny; although I do not believe it to consist in any question of degree. Sentimentalism is, as I take it, not excessive but illogical sentiment-that is, unequally distributed sentiment. Where there is a strong sensibility to the feelings of one class or body of persons and a comparative callousness to the feelings of other classes under like circumstances-there, I think, we have sentimentalism. And the tendency of the modern bourgeois treatment of crime is precisely in the direction of such sentimentalism.
In the Middle Ages “benefit of clergy” might be claimed by offenders who could read and write, such “benefit” consisting in exemption from the ordinary punishment for the offence. In the modern world all such wicked and unenlightened distinctions are abolished. The law nowadays makes no distinction of persons between men. True; but it makes distinctions between men and women, and where law draws no distinction, practice does. “Benefit of clergy” is superseded by “benefit of sex.” Not only are all the more brutal features of “penal discipline” still practised on men abolished as regards women, but the chances of prosecution, of conviction, and if convicted, of heavy sentences, are at least a hundred to one in favour of women. Of course we know that the principle of equality between the sexes, as understood in the present day, demands this, and has been, and is, continually pushing legislation forward in this direction. Unless the social upheaval obliterates current lines of progress beforehand, we may yet live to see “equality between the sexes” realised in laws, whereby no female may be prosecuted for any offence whatever, the nearest male relation being substituted, and where the quiet London wayfarer in a lonely street will be in as dangerous a position as the “unprotected male” in the railway carriage with a lone woman is now. Of course, any one that points this out is not treated seriously. The sentiment is still on the ascendant, and will have (as things go) to work out its own absurdity by its very excess before it begins to dawn upon the average British intellect that the distinction between the cohorts of Ormuszd and Ahriman is not invariably based on sex – and that persons who would legislate on this assumption are not quite fit to be at. large. Meanwhile our Ormiston Chants, Garrett Andersons, and Co., will probably have the opportunity of celebrating, in after-dinner speeches, new triumphs of the sexual inequality they apparently have at heart.
In concluding these remarks, we would again point out the truth more than once alluded to in the course of them, that with the establishment of a classless society – a society based on labour for all, leisure for all, and culture for all, through the concentration of its whole productive and distributive capital in its own hands as embodied in its administration – that in such a society crime, and therefore the mode of dealing with crime, must tend to lose its present significance and to become “rudimentary”. This is obvious as regards crimes against property and all such as are directly traceable to the present constitution of society. It is none the less true, in the long run, of the rest, which are only indirectly traceable to it. Given a class bred in squalor, and that class is bound to develop a certain number of individuals in whom the dead-level swamp of coarseness inseparable from squalor will overflow into criminal brutality. Given a community in which business capacity is identified with ability to beggar one’s neighbour ruthlessly under the name of competition, and where temptation offers you will have (1) direct appropriation by individuals of the property of other individuals – or, theft; and (2) the law-courts made use of to subserve private ends – or, briefly expressed, perjury.
But the best illustration of the truth in question is afforded by the relative preponderance of crime in the propertied and unpropertied classes of modern civilisation. From what section is the so-called criminal class recruited but from what Marx has termed the “reserve army of industry”? And is not this the class the precarious Condition of whose existence are continually driving its members to isolated criminal acts, even before they become habituated to a life of crime? And yet this reserve army of industry is inseparable from capitalistic production. On the other hand, can crime (as defined in this article) be said to be common among any section of the well-to-do classes? We have here and there sporadic instances of this commented upon as something remarkable, as showing the depravity of human nature, it is true, but no one can say it is common. If then we see an habitual absence of crime in one class, and an habitual presence in another class, both living in close proximity, both breathing the moral atmosphere of the Christian civilisation of these latter days, and differing only in the material circumstances of their life, and the results immediately flowing from these, what stronger evidence can we have of the ultimate dependence of crime on economic condition, – and I may add in conclusion, what greater earnest of the complete disappearance of crime in that future when generations of social morality shall have created human beings, compared with whom the crimeless bourgeois of to-day is but as the brute beast?
1. It is a curious circumstance, as illustrating the change of men’s view of offences, that an ordinary indecent assault which in the Middle Ages, in Chaucer’s time for instance, would evidently have been regarded as a species of rude joke, should now be deemed one of the most serious of crimes.
2. The same applies to chantage, which is the attempt to make personal capital out of the knowledge of some misdeed of another by threats of disclosure. If anything would justify the taping of life it is surely this; and one of the greatest artistic blunders Charles Dickens ever made was in the attempt to awaken sympathy in the reader for such a scoundrel as Tigg, when going to meet his well-deserved doom at the hands of his victim. That Jonas Chuzzlewit, who inflicted it, was a villain himself does not alter the matter so far as Tigg is concerned.
Last updated on 14.1.2006