Punishment is needed again

by Andreas Urban

[This article is translated from the German on the Internet, https://exit-online.org/textanz1.php?tabelle=aktuelles&index=202&posnr=694.]

On the return of repressive criminal law in the crisis of the ^working society1

The fact that the final crisis of capitalism - after initially limiting its effects primarily to peripheral regions of the world market and articulating itself there in increasing tendencies towards collapse (cf. Kurz 2003; Bedszent 2014) - has now also reached the capitalist centers themselves is now so obvious and understandable that such developments can only be kept out of one's own sphere of perception through open ignorance or through politically, scientifically and medially staged, ritual forms of “praying away” or “praying oneself healthy”. The fact that the capitalist system is now only kept alive by constant injections of liquidity from central banks (Konicz 2016) and the rapidly advancing neo-fascist tendencies in the core Western countries of “democracy and market economy” (Späth 2017) should gradually dawn on even the most narrow-minded representative of value-based subjectivity, that there is something fundamentally wrong with capitalism - provided, of course, that he or she does not prefer to deal with this crisis ideologically by turning to the aforementioned neo-fascist ideas in order to shift the crisis onto the socially weakest, especially refugees, for as long as possible.

A further indication of the penetration of the crisis dynamics into the capitalist centers, on which this text will focus in the following, is the clearly perceptible repressive tendencies in criminal law or - more precisely - in state penal practice. These tendencies can be seen in particular as a new “penal lust” (Cremer-Schäfer/Steinert 1998; Hassemer 2000; Rode et al. 2005) that can be observed both in criminal law itself and in society as a whole, which is taking shape above all in the constant expansion and tightening of criminal law norms, a trend towards increasing sentencing and imprisonment figures and a tendency to turn away from the principle of resocialization and reintegration of offenders. A connection between current crisis trends in the capitalist “working society” and the turn towards (once again) more repressive forms of the penal system is obvious, as the penal practice we are familiar with, which defines the resocialization of offenders as its own and even primary purpose (and is therefore often one-sidedly confused with a “humanization” of the penal system in the social consciousness), is a direct product of the Fordist era (I will discuss this in more detail later in the text). And it is precisely the lasting erosion of everything that characterized the Fordist phase (in particular “full employment” and the possibility of reproducing oneself sufficiently materially through work) that we are dealing with today in the crisis.

The tendency towards a tightening of penal practice also coincides with the emergence of a discourse on criminal policy security that has become extremely influential in recent years, through which “internal security” has successively risen to become the key and guiding concept of criminal policy action (cf. Hansen 1999; Kunz 2005; Haffke 2005; Singelnstein/Stolle 2006; Albrecht 2010; Groenemeyer 2010). The state is perceived as permanently threatened by (organized) crime, terrorism and other social conflicts. These discursively constructed threat scenarios ultimately form the basis for legitimizing the tightening of existing criminal law norms and the creation of new ones, as well as measures of state social control and surveillance.

In academic criminology and criminal sociology, such tendencies have been brought into focus and discussed in recent years, particularly under terms such as “punitivity” (e.g. Krasmann 2003; Rzepka 2004; Pratt et al. 2005; Schlepper 2014a) or “renaissance of repressive criminal law” (Schlepper 2014b; in this sense also Sack 2004, 2005). The term “punitivity” goes back mainly to a study by David Garland (2001), who spoke of a “punitive turn” in the 1990s with regard to criminal law developments in the USA (which traditionally already has a comparatively repressive criminal law system among developed capitalist countries). What is striking about this academic discussion (which is certainly conducted with a critical approach) is that the problematized punitive tendencies are generally attributed quite superficially to neoliberal restructuring and the associated economization processes - which is not entirely wrong, of course, but ignores the more general capitalist crisis tendencies that are constitutively underlying neoliberalism itself. This not only systematically misses the actual social cause of “punitivity” - the crisis of the capitalist “working society” as such - but also places us in the waters of a potentially conspiracy ideological perspective, as was characteristic of some neo-Marxist currents within criminology in the 1970s, which theorized criminal law as a mere instrument of domination and power of the capitalist class to suppress and control lower social classes (cf. Hepburn 1977). Similarly abbreviated argumentation patterns result - even if only implicitly - from the common equation of neoliberalism and economization with the ideologies of increasingly profit-hungry corporations and financial managers as well as compliant politicians, who would now virtually also repurpose criminal law for their socially harmful purposes. As will be shown below, for a comprehensive, critical understanding of these recent developments in criminal policy, it is essential to see them in the context of an advancing “crisis of the working society” and the resulting social upheavals, which are increasingly being repressively managed with the help of criminal law.

In the following, reference is made to a classic study by Georg Rusche and Otto Kirchheimer on “Social Structure and the Penal System” (Rusche/Kirchheimer 1974, first published in the USA in 1939 under the title Punishment and Social Structure).² Their core thesis essentially states that the development of the modern penal system was significantly influenced by the specific economic structure of the emerging capitalist society, and in particular by the need of capitalist economies for labor. This study is still one of the “key works” (cf. Schlepper/Wehrheim 2017a) of a so-called or self-apostrophizing “critical criminology” and was much discussed there, especially at the time of its first publication in German in the 1970s, and was also (sometimes very rightly) criticized, for example with regard to the authors' tendency to economically abbreviated argumentation (on the criminology-immanent debate with Rusche/Kirchheimer cf. Jancovic 1977; Steinert/Treiber 1978; Melossi 1978; for an overview of the critical discussion see Schumann 1981).

In the following presentation and discussion of Rusche/Kirchheimer, I will repeatedly take up and critically reflect on various of these points of criticism, in particular the aforementioned accusations of economism, since in my opinion the common (academic) critical-criminological treatment of their work already systematically makes it impossible, to take sufficient note of and analytically consider the burning and hardly overlooked topicality of her findings of 80 years ago - albeit then under the opposite sign - of a constitutive connection between the need for manpower and the penal system in its implications for society as a whole. This topicality quite obviously consists in the fact that today, with the maturing of the “processive contradiction” (Marx), i.e. with the successive obsolescence of labor as a result of the ever higher capitalist productivity level through the automation of production, the resulting consequences of mass unemployment and, as a further consequence, the increasing impoverishment of large sections of the population must be dealt with and managed socially - and a central political instrument for this has always been and still is criminal law. An unbiased examination of Rusche/Kirchheimer and the critical questioning of their theses with regard to their topicality would presumably also protect against abbreviated positions critical of neoliberalism, as are prevalent today in critical-criminological discussions about the rampant criminal law “punitiveness”, as the critical analysis would thus be raised to a more general, overall social level, on which neoliberalism and economization could also be perceived and theorized as what they are: namely symptoms (and not causes) of a fundamental crisis of the capitalist “labor society” as a whole. ³

Even if certain theoretical shortcomings in Rusche and Kirchheimer's theory must be taken into account and critically reflected upon, their thesis of the connection between the capitalist need for labor and criminal law or the penal system proves, in my opinion, to be highly topical in the current “crisis of the labor society” and a theoretical approach of great cognitive value. What exactly this topicality consists of and how it presents itself in concrete social terms is the subject of this article. To this end, it is necessary to defend Rusche and Kirchheimer - where appropriate and necessary - against their critical-criminological critics, but also to think with (and sometimes against) Rusche and Kirchheimer beyond Rusche and Kirchheimer.

To this end, after briefly summarizing the central thesis of Rusche/Kirchheimer, I will use the critical discussion of their theoretical findings as well as their criminological critique for a reconstruction (albeit a rather rough and cursory one) of the constitutional and developmental history of the modern penal system in the context of the historical implementation of the capitalist “labour society” from early capitalism to the Fordist phase (i.e. The following section then goes on to theorize the current return of repressive criminal law precisely not as a break in an (alleged) “humanization process” of modern criminal law, but, on the contrary, in the sense of an entirely given historical continuity of capitalist development, which is coming to an end today with the “crisis of labour”, and in which, inherent in the system, there is apparently only the option of managing the associated social upheavals in an increasingly repressive manner with the help of criminal law.

The connection between the need for labor and the penal system

Roughly summarized, the study by Rusche and Kirchheimer says roughly the following: Legislation as well as the practice of the penal system are essentially determined by the need for labor and thus depend primarily on economic factors or the concrete economic structure of a society. This is their central thesis, which they attempt to make plausible in their book “Sozialstruktur und Strafvollzug” (Social Structure and the Penal System) on the basis of historical material. They begin by describing the practice of punishment in the late Middle Ages, which was characterized by cruel corporal and capital punishments, particularly against the poor and unemployed, and was practically aimed at their systematic extermination (Rusche/Kirchheimer 1974: 23-35). This changed under mercantilism in the early phase of capitalist society with the introduction of imprisonment and the emergence of the penitentiary, which greatly reduced corporal punishment. According to Rusche and Kirchheimer, this change in penal practice did not follow the intention of a more humane treatment of “criminals”, but was largely determined by the need for (cheap) labour against the backdrop of the expanding capitalist mode of production: “The establishment of penitentiaries in such a society”, they explicitly emphasize, “was not for reasons of charity or out of a sense of public obligation towards those in need. It was part of the development of capitalism” (ibid.: 73). In contrast to the late Middle Ages, in which there was a blatant surplus of labor and the value of a human life was correspondingly low (ibid.: 31), there was now an extraordinary demand for labor, which was reflected in a sharp change in penal practice.

As a result of industrialization and the implementation of the factory system in the course of the 19th century, there was another comprehensive change in the penal system, which, according to Rusche and Kirchheimer, was primarily due to the fact that the labour of convicts interned in penitentiaries could no longer be used profitably enough: “The factory took the place of the penitentiary, which had required large investments for administration and discipline. Free labor could produce much more and was less of a burden on investment capital than the penitentiaries had been. In other words, the penitentiaries fell into decay because other and better sources of profit were found, and because with the disappearance of the penitentiary as a means of profitably exploiting labor, the potential ameliorating effect of regular labor also disappeared” (ibid.: 132f.). Since, in the course of industrialization, the structural shortage of labour (compensated for by penitentiaries, among other things) was replaced by equally structural mass unemployment and there was a sharp rise in crime by the increasingly pauperized masses, the prison acquired a new function and forced labour in the penitentiary was replaced by mere deprivation of liberty. At the same time, and virtually parallel to imprisonment, a broad system of fines was introduced, which primarily served to reduce the state costs of the penal system. Thus, in the developed capitalist “working society”, a kind of two-tier penal system emerged: (preferably) fines for minor offenses and for those fully integrated into the work process, but imprisonment for the socially deprived and “criminals”.

History of the modern penal system from early capitalism to the end of Fordism

The study by Rusche and Kirchheimer on the connection between capitalist social structure and the modern penal system basically describes the history of the modern penal (legal) system against the background of the development of capitalist social relations and their nature as a “labor society”. The capitalist exploitation of labor power produces a social structure that, historically speaking, is accompanied by a steadily increasing demand for labor and thus also changes the social purposes and modes of punishment. A society with such a high demand for labor, as prevails in developed capitalism, cannot afford to imprison or possibly even kill exploitable labor (or as it is called today in business terms: “human capital”) for every deviant act. On the other hand, under conditions of a socially low demand for labor and a corresponding surplus of labor, there may be a greater willingness to deal less squeamishly with deviants and delinquents. At any rate, this is the thesis that Rusche and Kirchheimer attempt to prove historically, and in view of the actual historical development over the last few centuries up to the present day, such a connection does not seem implausible.

As already mentioned, Rusche and Kirchheimer's thesis has repeatedly been the subject of intense debate in the field of criminology and has sometimes been heavily criticized. One of the main points of criticism has been various economistic reductions in Rusche/Kirchheimer's theory of the development of criminal law. One particularly influential criticism in this context in the German-speaking discussion comes from Heinz Steinert and Hubert Treiber (1978), for example. They criticize the fact that Rusche and Kirchheimer assumed a “direct economic effect of criminal law”, since according to them criminal law “should be able to solve (certain) economic problems for the rulers of a particular social formation. (...) It is taken for granted that changes in criminal law have a direct effect on economic and social conditions” (ibid.: 82). Furthermore, Rusche/Kirchheimer were accused of historical inaccuracies in their analysis, for example with regard to the criminal law “extermination policy” in the late Middle Ages that they claimed (also Steinert/Treiber 1978). Their thesis of the increasing importance of fines in developed capitalism was also a major object of criticism (cf. Melossi 1978; Jancovic 1977). Jancovic (1977), for example, was able to empirically disprove an increase in fines, at least for the USA. In the discussion surrounding Rusche/Kirchheimer, findings such as these were sometimes seen as evidence that their theses lacked explanatory power for the penal system of the 20th century - in my opinion (and as will be shown) a premature conclusion.

However, Rusche and Kirchheimer's study does indeed have a number of criticizable weaknesses that need to be taken into account when referring to it, especially when it comes to a historically accurate reconstruction of the development of the modern penal system. In my opinion, the most problematic is her thesis of the bloody and cruel penal practice in the late Middle Ages, which was successively replaced by a less repressive system of imprisonment and imprisonment under capitalism. On closer inspection, this thesis proves to be historically rather imprecise in that Rusche and Kirchheimer refer in their analysis primarily to a historical phase that quite obviously coincides with what Karl Marx (1962/1867: 741-791) calls “original accumulation” in the first volume of Capital. Marx uses this term to describe the period of transition from medieval feudalism to modern capitalism, in which peasants were expropriated en masse at the end of the 15th and beginning of the 16th century, the peasantry was driven off the land and thus a “mass of bird-free proletarians” was created, who were literally “hurled into the labor market” (ibid.: 746). “The proletariat driven out by the dissolution of feudal allegiances and by the sudden, violent expropriation of land and soil, this outlaw proletariat”, Marx writes, “could not possibly be absorbed by the emerging manufactory as quickly as it was brought into the world. (...) They were transformed en masse into beggars, robbers, vagabonds, partly by inclination, in most cases by the compulsion of circumstances” (ibid.: 761f.). The social response to this rampant poverty and mass misery consisted primarily in the criminalization of the same; a veritable “blood legislation against the expropriated” (ibid.: 761) had been put into effect. This included cruel punishments such as flogging, scourging, branding, forced labor and even execution for multiple violations. In this way, according to Marx, “the peasantry, expropriated from land and soil by force, driven out and turned into great vagabonds, was whipped, branded and tortured by grotesque-terrorist laws into a discipline necessary to the system of wage labor” (ibid.: 765).⁴

In short, the “creation of a cruel criminal law” described by Rusche and Kirchheimer in their study (Rusche/Kirchheimer 1974/1939: 23) with its embarrassing corporal punishments, the “rapid increase in the number of death penalties in the course of the 16th century” (ibid.: 29), all these are, on closer inspection, by no means still phenomena of the Middle Ages, as they suggest in their study, but rather already phenomena of capitalism itself in its historical constitutional phase. This clarification is particularly important because it is a well-known myth of progress in capitalist “civilization” that the cruel criminal law of the “Dark Ages” has been replaced by a much more “humane” criminal law and penal system in modern capitalism - a myth that Rusche and Kirchheimer themselves vehemently oppose in their study.

In addition to historical inaccuracies such as those described, certain economistic abbreviations in Rusche and Kirchheimer's study cannot be dismissed out of hand. That, for example, the forced labor system in penitentiaries and workhouses was ever economically profitable and in this respect fulfilled a primarily economic function, which is said to have consisted of compensating for labor shortages by utilizing the labor of the poor, beggars and prisoners, is probably an inaccurate assumption, but in any case one that has since been historically refuted (cf. e.g. Geremek 1991: 266f.). Nevertheless, Rusche and Kirchheimer, despite this economically misguided (mis)assessment, also indicate that they were well aware of the actual and much more essential function of penitentiaries, namely the disciplining and “improvement” of prisoners through regular work (cf. Rusche/Kirchheimer 1974/1939: 132f.). Overall, however, critics such as Melossi (1978) or Steinert/Treiber (1978) are quite right when they state that this aspect remains very underexposed in Rusche/Kirchheimer. As is well known, Michel Foucault (1994) later elaborated on the disciplinary aspect in detail in his famous work “Surveillance and Punishment”.⁵ As already mentioned, Marx also referred to the disciplinary function of early capitalist “blood legislation” in his remarks on “original accumulation” (Marx 1962/1867: 765). It was, so to speak, a matter of literally “beating into” the human material the labor discipline necessary for the emergence of capitalism.⁶

In my opinion, however, despite all the other very justified points of criticism, Rusche and Kirchheimer cannot easily be accused of such crude economic functionalism as Steinert and Treiber, for example, would like to state. What Rusche and Kirchheimer's study primarily aims to do is not (or at least not primarily) to prove a “direct economic effect of criminal law”, as Steinert and Treiber (1978: 82) claim, but rather the analysis actually goes in exactly the opposite direction. What the two work out - in line with the title of the study (which can thus be taken literally) - is the connection between social structure and the penal system. They show that the development of the capitalist mode of production and the modern working society that emerged from it gave rise to its own system of criminal law and the penal system. Embarrassing corporal punishment and the physical destruction of delinquents became obsolete in terms of criminal law to the extent that the emerging capitalist mode of production with its manufacturing and later, from around the middle of the 18th century, factory system developed an enormous demand for human labor. They were therefore replaced by custodial sentences and forced labour in the penitentiary, and later - with the further establishment of the modern working society and the advanced internalization of capitalist work virtues by wage earners, which gradually made their repressive discipline superfluous - a differentiated system of fines. This may not play the central role ascribed to it by ^{Rusche/Kirchheimer7}, but above all it certainly does not (at least not primarily) fulfill the assumed fiscal function of reducing state costs for the penal system. Rather, the expansion of fines is probably itself rooted in the requirements of a developed capitalist working society with a view to the reproduction of usable labor and thus, in line with Rusche/Kirchheimer's central thesis, in society's need for labor.

As developments over the course of the 20th century showed (which Rusche and Kirchheimer were admittedly not yet able to adequately foresee in the 1930s), fines did indeed tend to gain in importance (although perhaps not equally in all countries) the more work intensified in the course of Fordist mass production after the Second World War and the conditions for the reproduction of labor power became successively more difficult, for example due to increasing qualification requirements, which in turn required a correspondingly more “careful” handling of the commodity of labor power. Heinz Steinert (together with Arno Pilgram) provided important insights in this direction in a study on the Austrian criminal law reform of 1975 (Pilgram/Steinert 1975). According to Pilgram and Steinert, the main focus of criminal law reforms that took place in the 1960s and 1970s can be interpreted precisely as an attempt “to remove early barriers to advancement and qualification for young workers (e.g. through probationary assistance in juvenile criminal law, greater scope for fines, etc.) and to prevent overly direct dequalification. The aim is to eliminate early barriers to advancement and qualification among young people in the workforce (e.g. through probation assistance in juvenile justice, greater scope for fines, etc.) and to mitigate overly direct disqualifications caused by the prison system (by placing more emphasis on treatment and maintaining performance in prisons, expanding early conditional release and aftercare, cash reserves for release and waiving reimbursement of prison costs, shorter redemption periods, etc.)." (ibid.: 267). In addition to an expansion of fines (which was highlighted in the context of the Austrian criminal law reform of 1975 as a special “example of social democratic reform policy”, cf. Rotter/Stangl 1981), this historical situation also (and perhaps even more significantly) led to the expansion of probationary services, which represent a core element of a resocializing penal system that has since become characteristic of Western industrial societies.

The importance of probation, or more generally of suspended sentences, is also emphasized by Jancovic (1977), who, with regard to fines (as mentioned above), questions the applicability of the theses of Rusche/Kirchheimer to the penal system of the 20th century. The fact that the suspended sentence, as Jancovic quite rightly states in my opinion (at least phenomenologically), is a form of punishment appropriate to late capitalism, because it reflects in particular the increasing shift from the productive sector to the service sector, is ultimately only understandable under the conditions of a now more difficult reproduction of labor power, which should not be impaired by prison sentences and the like - otherwise there would not be too much political and economic reason not to continue to prefer to put delinquents in prison (which the USA in particular has increasingly practiced again since the 1970s - see below). The spread of suspended sentences emphasized by Jancovic thus essentially presupposes the assumption of a constitutive connection between the need for labour and the penal system - in the spirit of Rusche and Kirchheimer - even for late capitalist conditions.

A further characteristic and perhaps even the most positively evaluated aspect of liberal criminal law reforms of the 1960s and 1970s can be seen in the historically unprecedented decriminalization push that occurred at this time (admittedly also against the background of social struggles, such as the women's and homosexual movements), especially in the area of so-called “moral criminal law” (decriminalization of homosexuality, abortion, etc.). Pilgram and Steinert (1975) explain the decriminalization tendencies of the time in their study by saying that stereotypical criminal sanctions, in addition to a serious dequalification and devaluation of the workforce, especially of young people, would create “deviant fringe groups”, “a concentrate of problems that virtually constantly denies the justification of the existing social structure of equal opportunities, achievement ideology and possibilities of realizing individual happiness” (ibid.: 272). In other words, the social values of humanity, liberality, equality (of opportunity) etc. that were spreading at this time (and on the basis of Fordist post-war prosperity and mass consumption) had a de-legitimizing effect, especially in the area of moral legislation. One downside of this development, of course, as Pilgram and Steinert also very aptly point out, is a stronger concentration of criminal law on the “hard core of crime” (ibid.: 273) - for example in the form of greater consideration of previous convictions or institutions for “dangerous recidivists”, who now tend to simply be locked away.

However, this process of developing a modern penal system, which is all too often confused with a process of progressive “humanization” of the same, is by no means linear. At the beginning, in its early constitutional phase, when its social order and property relations were already largely established, but the hunger of the emerging manufactories for labor power was not yet great enough to absorb all the human material made available into the labor process, capitalist society initially went through a period of increasing cruel and bloody corporal and capital punishment - a reaction to all the “superfluous” - which at first glance was almost diametrically opposed to the later development of criminal law, which this socially devastating process of upheaval, described above all by Marx, produced in large numbers and which, as a result, developed a criminal repression of the poor, beggars and vagabonds that was indeed often associated with intentions of extermination and was rather alien to the supposedly so “dark Middle Ages” (to which Rusche and Kirchheimer wrongly attribute this “criminal extermination policy”) - despite all the other bad things that can be said about the Middle Ages.

Martin Kronauer, for example, states the following with regard to the social status of the poor and beggars in the Middle Ages: “In the Middle Ages, the poor had a fixed, albeit ambivalent, place defined by religion. In the cities, begging was able to develop into a specialized branch of trade with independent professional organizations. In the 16th century, however, there was hardly any sign of the 'ethos of poverty' (...) on the part of the rulers. Everywhere the poor were officially registered, vagrancy and begging were severely punished, immigrant vagrants were chased out of the city, and the able-bodied poor were, if possible, subjected to forced labor (often in specially established workhouses under strict supervision and with particularly low wages)” (Kronauer 2002: 81).

Martin Rheinheimer (2000), among others, describes the policy against the poor and beggars in emerging capitalism, which was also associated with intentions of extermination. According to him, it was primarily foreign beggars and so-called “unworthy poor” who were affected by this, but especially “gypsies”. These would have attracted even stronger projections, “because they were even less socially integrated and were distinguished by their dark appearance. For this reason, persecution increasingly focused on the Gypsies, especially as they formed a manageable, more clearly defined and therefore more tangible group that could really be eradicated” (ibid.: 173). At the beginning of the 18th century in particular, antigypsyist persecution was stepped up to an extreme degree compared to the reprisals against “gypsies” that had been the order of the day since the early modern period, with “gypsies” being declared outlaws: “Every male gypsy over the age of 18 was to be hanged, regardless of whether he could be proven to have committed a crime or not. The intention was to exterminate them” (Scholz 2007: 181).

The connection between social structure and the penal system identified by Rusche and Kirchheimer thus consists in the dependence of criminal law and the penal system and its development on the need for labor in a capitalist “labor society” based primarily on wage labor or - to put it more precisely - on its ability to sufficiently integrate the masses subject to the specific capitalist compulsion to gainful employment into wage labor contexts. Such a finding has nothing (or at least nothing directly) to do with an “economic function” or a “direct economic effect” of criminal law, as Steinert and Treiber (1978: 82), for example, imply. Basically, it says no more, but also no less, than that the specifically capitalist principles of form and structure also (and necessarily) extend to criminal law, and that certain requirements arise from this, which criminal law must sufficiently satisfy, not least for reasons of its own social legitimacy. And these requirements can be very different within the capitalist structure - depending on whether there is a strong demand for qualified workers on the labor market, as was the case in the 1960s, for example, and therefore, among other things There is also a lively interest in not making the sensitive reproduction of labor even more difficult through overly rigid, stereotypical criminal sanctions and the associated deskilling; or whether, as in the constitutional phase of capitalist society, there is mass unemployment, social impoverishment and, often associated with this, a high level of criminality, which must be dealt with under criminal law and (tendentially repressively) combated.

Whether criminal law is actually able to meet these requirements is, of course, a completely different matter - on the contrary, it is not even said that certain criminal policy strategies do not actually have a counterproductive effect and produce unintended negative effects.⁸ Despite all the theoretical shortcomings and economistic reductions for which Rusche and Kirchheimer can certainly be blamed (and which have certainly also contributed to the corresponding accusations of economism), the central finding of their study - the proof of a connection between capitalist social structure or capitalist demand for labor and criminal law or the penal system - can by no means simply be qualified as “economistic”.

The return of repressive criminal law in the “crisis of the working society”

The presented “critique of the critique” of Rusche/Kirchheimer and the reformulation of their central thesis was necessary in this detail for two reasons: Firstly, the aim was to obtain a historically reasonably precise (albeit very cursory) overview of the emergence and development of the modern penal system, since it is precisely this and the relevant social processes and framework conditions that should demonstrate the decisive difference and, in particular, the crisis-like quality of those overall social changes that today's “return of repressive criminal law” encounters and to which, in my opinion, it responds. to which, in my opinion, it responds. On the other hand, the relatively detailed discussion of the criminological critics of Rusche and Kirchheimer was motivated by the fact that, in view of certain weaknesses in the theory of Rusche/Kirchheimer, the topicality and explanatory value of their theses with regard to current social tendencies can systematically escape one if these shortcomings cause one to reject their theses as exaggerated, empirically untenable or no longer valid today. This would be downright fatal insofar as a whole series of developments can be observed in the present that seem to confirm the core of Rusche/Kirchheimer's theory - albeit today under somewhat different circumstances and in a way that Rusche and Kirchheimer probably did not foresee. For once again, capitalist society is currently experiencing serious upheavals and transformations in the field of labor, with corresponding effects on society's overall demand for labor, which in turn appears to be accompanied by far-reaching changes in criminal law and penal practice.

As a result of the advanced scientificization and mechanization of production, in particular the development of microelectronics (computers, information technology, etc.), which has progressed enormously since the 1970s, the capitalist system has evidently now reached a level of productivity at which the “labour factor” is becoming increasingly superfluous for the production process and is therefore being increasingly removed from it in ever new waves of rationalization and automation. The consequence of this is structural unemployment, i.e. unemployment that is hardly dependent on the economic cycle, which is now reaching ever new highs even in the capitalist centers and as a result of which ever larger sections of the employable population are practically permanently “falling out” of the sphere of gainful employment. Unlike was the case in the heyday of Fordism, the “golden age of capitalism” (Hobsbawm 1995), in so-called “post-Fordism” rising productivity has not led to a comparable increase in jobs through the creation of new business sectors, the development of new markets, etc. Rather, productivity has reached such a high level that it is no longer possible to create new jobs. Rather, productivity has reached such a high level that the new technologies have tended to make more work superfluous than the number of new jobs created by the same technologies (see Kurz 2009: 622ff.).

The “disappearance of work” (Glaser 1988) can be seen even better than in the official unemployment rates (which have risen significantly in practically all Western industrialized countries since the 1970s)⁹ in the numerical ratio of registered unemployed and job vacancies. A considerable and rapidly growing gap has opened up here in recent decades. In Germany, for example, which is still affected by comparatively low unemployment internationally due to its economic position as an “export world champion” (but also by weak wage development and correspondingly weak domestic demand), the ratio of unemployed people to job vacancies has shifted since 1980 from around 2:1 (i.e. there were two unemployed people for every job vacancy) to around 6:1 in 2014 (see Kurtzke 2015: 10).¹⁰ This means that an ever-increasing number of unemployed people have virtually no chance of finding a job.

Another fairly good indicator of the gradual “disappearance” of work and its structural nature is the development of the volume of work. This refers to the total number of hours worked in a year. Today (as of 2014), this is 58 billion hours in Germany, the same level as in 2000 and significantly lower than in 1991 (ibid.: 11). This contrasts with an enormous increase in productivity: according to data from the Federal Statistical Office, productivity in industry in Germany has tripled since 1970, and in agriculture it has even increased sixfold (cf. Ortlieb 2013). So while productivity is steadily increasing, the amount of work to be done in the production process - unlike in the heyday of Fordism in the 1950s and 1960s - is decreasing more and more.

Of course, this is not a specifically German phenomenon, but a general problem of global dimensions: between 1995 and 2002 alone, the world's 20 largest economies lost more than 31 million industrial jobs, while global industrial production grew by 30 percent in the same period (see Konicz 2016: 30). The direct consequence of this increasing gap between productivity and labor intensity is a steady rise in global unemployment. The International Labor Organization (ILO) estimates that more than one billion people worldwide are currently underemployed or completely unemployed - and the trend is rising.

In the social sciences, developments such as these are occasionally reflected in diagnoses of a “crisis of work” or a “crisis of the working society” (see Matthes 1983; Dahrendorf 1980, 1983; Glaser 1988; Rifkin 1995; Geisen et al. 1998; Exner et al. 2005; Castel 2011). However, the full extent of this crisis is rarely grasped and critically analyzed. For example, numerous discussions of the “crisis of work” focus on a potential loss of meaning that the end of work could mean for people, as their lives and identity have so far been shaped primarily by work, while the consequences for society as a whole or the potential crises for the capitalist system as such resulting from the crisis of work tend to be neglected (e.g. Dahrendorf 1980, 1983; Glaser 1988).

Robert Castel (2011), on the other hand, focuses his findings of a “crisis of work” primarily on processes of progressive precarization in the course of neoliberal deregulation of employment relationships. It is true that the neoliberal precarization of work is indeed an essential aspect of this “crisis of work”. However, it is itself only a symptom of the crisis, not the crisis itself or even its cause. The spread of precarious employment is itself a consequence of political measures to combat the massive rise in unemployment, in that the steadily declining volume of work is being spread across a larger number of employees (through the expansion of part-time work, mini-jobs, temporary work, fixed-term contracts, etc.). In this context, the drastic social reforms in the USA under Bill Clinton (cf. Zinn 2007: 631-662) and the German Hartz laws (cf. Rentschler 2004), which owed their “success” to the creation of a considerable low-wage sector, became particularly notorious.

Seen in this light, the “crisis of work” does not (or at least not primarily) consist in its progressive precarization, but rather in the emerging obsolescence of the category of work as such. At the level of productivity achieved, capitalism is transforming ever larger parts of humanity into economically “superfluous” people in the truest sense of the word. Ultimately, this also makes interpretations that reduce the “crisis of work” primarily to current trends towards precarization problematic. These are usually understood in terms of a new, heightened form of capitalist exploitation against the backdrop of neoliberalism and globalization. However, the problem of an increasing number of people in the “crisis of work” is precisely that they are no longer or only insufficiently exploited by capitalism, which deprives them of any basis for existence under capitalist premises.¹¹ In Western industrialized countries, this economic “superfluousness” still takes the form of a constant, latent threat, for example in the increasing bureaucratic harassment of the unemployed and welfare recipients in the style of the Hartz laws, which practically individualize the overall social “crisis of work”, or in the much lamented spread of insecure and precarious employment relationships. In the peripheral regions of the capitalist world system, on the other hand, “superfluousness” is already in a manifest stage, becoming visible in the rapid impoverishment of large sections of the population and in the progressive slumming of cities (cf. Davis 2007).¹²

For a long time, the critique of the separation of value has emphatically pointed out that this “crisis of labor”, which can hardly be denied and is empirically evident, marks a fundamental crisis of the capitalist mode of production and the modern form of society based on it as a whole. As early as 1986, in his text The Crisis of Exchange Value, Robert Kurz spoke of an “absolute logical and historical limit” (Kurz 1986: 28) that capitalism was reaching with the increasing superfluousness of labor through the progressive automation of production: "As soon as capital can no longer expand the creation of value in absolute terms by extending the working day, but is only able to increase its relative share within the new value created by means of the development of productive power, a contrary movement takes place (...) which historically consumes itself and must work towards and amount to the total standstill of value creation itself. With the development of productive power, capital increases the degree of exploitation, but in doing so it undermines the basis and object of exploitation, the production of value as such. For (...) the scientification of the material production process includes the tendency to eliminate living, direct production work as the only source of value creation for society as a whole” (ibid., original emphasis).

Kurz also draws on the theses of Karl Marx, who had already recognized this immanent capitalist crisis dynamic in the 19th century (at a time, mind you, when capitalism was still in its infancy). He foresaw this immanent capitalist crisis dynamic in the 19th century (at a time, mind you, when capitalism had yet to experience its greatest (Fordist) surge of accumulation) and described it as the “processive contradiction” of capitalism: "To the extent, however, that great industry develops, the creation of real wealth becomes dependent less on labor-time and the quantum of applied labor than on the power of the agents which are set in motion during labor-time, and which itself again (...) bears no relation to the immediate labor-time which its production costs, but rather depends on the general state of science and the progress of technology, or the application of this science to production. (...) Capital is itself the litigating contradiction (in that) it seeks to reduce labor-time to a minimum, while on the other hand it sets labor-time as the sole measure and source of wealth” (Marx 1983: 600, 601f.). Thus, according to Marx (ibid.: 601), in the long run “production resting on exchange-value must collapse.”

In plain language, this means that by making labor increasingly superfluous by virtue of its own logic of productivity, capitalism undermines its own basis of existence. Capitalism without work is a contradiction in terms, a factory devoid of people is a logical absurdity, because no more work would be utilized in it, and thus no more value creation would take ^place13 - and yet it is its own dynamics of utilization itself that is driving capitalism towards this actually untenable state (see also Ortlieb 2009).¹⁴

On the other hand, this “crisis of labor” outlined so far is also accompanied by developments in the area of criminal law and the state penal system, which can be interpreted as a “renaissance of repressive criminal law” (Schlepper 2014b). As already mentioned in the introduction, such tendencies have been discussed in criminal sociology for several years under the heading of “punitivity” (Garland 2001; Rzepka 2004; Krasmann 2003; Pratt et al. 2005). Relevant diagnoses refer in particular to an observable increase in criminalization, imprisonment and convictions as well as an increasing trend towards tightening existing criminal law norms or creating new ones in many Western industrialized countries. In the USA as well as in Europe, the criminal policy discourse is increasingly characterized by strategies and ideologies such as “zero tolerance” and “war on crime”, which propagate a crackdown on deviations from the norm and crime (see Hansen 1999; Simon 2007; Hinton 2016). A particularly strong indication of an emerging “punitive turn” (Garland 2001) in criminal law is also seen in the fact that the goal of resocialization, which has been central in developed capitalist states for decades, is gradually being pushed back in favour of a mere custodial sentence and a return to a policy of “locking up”.

With the “crisis of work” and the spread of structural mass unemployment, it would appear that not only are poverty and precarization on the rise, but criminal law and state criminal policy are also taking on much more repressive traits again. A constitutive connection between these two parallel trends can not only be assumed, but is actually evident, as the corresponding punitive criminal policy strategies and measures can be understood precisely as reactions to the social upheavals associated with the “crisis of work”, which (in the absence of other systemic solutions) are apparently to be managed increasingly repressively with the help of criminal law.

In the USA in particular - but by no means only - there has been a tendency for years to respond to rising mass unemployment, precarization, social depravation and poverty with the means of criminal law (see Garland 2001; Wacquant 2000, 2009; Reiman/Leighton 2012; Goffman 2015; Hinton 2016). There, for example, the imprisonment rate has virtually exploded in recent decades: While the imprisonment rate in the USA in 1970 was still around 100 per 100,000 inhabitants (cf. Beatty et al. 2007: 2), in the present day (as of 2013) this figure stands at a staggering 910 according to official statistics (Glaze/Kaeble 2014: 11). As Loïc Wacquant (2009: 149) states, “the number of Americans under criminal justice supervision increased by more than four and a half million within 20 years: it rose from 1.84 million in 1980 to 4.35 million in 1990 and 6.47 million in 2000, a figure that corresponds to 3% of the entire adult population of the USA and one in 20 white and one in ten black male adults”. The prisons are also predominantly filled less with violent criminals, which is usually used to legitimize the massive incarceration policy in the USA, but mainly “with non-violent delinquents and petty criminals, most of whom (...) come from the socially weakest fractions of the working class” (ibid.: 147), especially from the black ghettos. In this context, Wacquant speaks quite vividly of “punishing the poor” (Wacquant 2009) and of “misery behind bars” (Wacquant 2000).¹⁵ Nils Christie (1995) puts it even more clearly, speaking very aptly of “Western-style gulags” with regard to the rapidly rising imprisonment rates, especially in the USA.

Similar trends can also be observed in Europe, albeit at a much lower level. In most Western European countries, the imprisonment rate has demonstrably risen over the past two to three decades (cf. Dünkel/Geng 2013: 45). Countries such as the Netherlands, Portugal and Spain, where imprisonment rates have doubled to almost quadrupled during this period, have seen particularly strong growth rates (ibid.). The growth rates are also remarkable in Belgium and England/Wales, where imprisonment rates have risen by between 60 and 100 percent since the mid-1980s (ibid.: 47). In Germany, too, there is evidence of a significant increase, particularly in the 1990s, although from the mid-2000s onwards (practically parallel to the decline in unemployment since then as a result of German export orientation and Hartz IV), the rate of imprisonment has steadily fallen again.

Just how negligently and ultimately systematically preventing any critical insight one can deal with such empirical data can be excellently illustrated by the two criminologists Dünkel and Geng quoted here: They use their figures on the long-term development of imprisonment rates in Europe - in complete contrast to this text - not as an argument for, but against punitive tendencies. According to them, the development of imprisonment rates in Europe depends on too many different factors from country to country for it to be readily interpreted as evidence of increasing punitiveness in criminal law. For example, rising imprisonment rates, such as in Germany in the 1990s, are primarily due to stricter laws for violent and especially sexual offenses. In other countries (e.g. France), on the other hand, demographic factors such as migration and a high proportion of foreigners are more likely to be decisive. They attribute the recent sharp rise in imprisonment rates in Italy, for example, to the local policy against refugees from Africa. Now, there is no denying that these are all very justified and important empirical differentiations. However, the question arises as to what extent they can be used as an argument against the assumption of increasing punitivity. For example, it is not at all clear why an increase in imprisonment rates as a result of tougher sentences for violent and, above all, sexual offenses should speak against a punitive turn, especially since these kinds of things are seen as very important indicators of punitive tendencies in the punitiveness debate (e.g. Lautmann 1993; Lautmann/Klimke 2008). Similarly, the “lockdown policy” against refugees, which is apparently driving up imprisonment rates in Italy, could certainly be interpreted in terms of punitiveness, at least if it is contextualized in the “crisis of labour” discussed here. This policy could then be understood as a reaction to the increasing numbers of refugees coming to Europe from the capitalist periphery, who can no longer be integrated into the local labor market and who therefore tend to slip into crime and the shadow economy. Despite all the empirical diversity and necessary analytical differentiation, we should perhaps also try to avoid losing sight of the forest for the trees.

What remains is that there are considerable quantitative and qualitative differences between the USA (to which the diagnosis of “punitiveness” originally primarily referred, cf. Garland 2001) and Europe with regard to punitive developments - as opponents of the punitiveness thesis within criminology in particular often emphasize (e.g. Schneider 2014: 127). However, the existence of punitive tendencies can hardly be denied in Europe either, or only if these tendencies are downplayed in comparison to the significantly worse conditions in the USA, or if empirical findings that could prove a punitive tendency are drowned in their empirical “diversity” and their differences until such a tendency is in fact hardly recognizable - at least not from a positivist-empirical perspective. As Daniela Klimke (2009) correctly points out, it is therefore quite possible to “define away” “punitivity” if one only makes the empirical evidence fit and, above all, denies corresponding tendencies with reference to the lack of clear empirical evidence, because one is unwilling or unable to consider individual empirical data in their possible contexts. Of course, this does not eliminate the problem of “punitivity”, but it is at least temporarily outside one's own immediate field of perception.

In addition, the advance of punitive developments in Europe is not limited to rising prison rates, but also concerns, for example, the increasing abandonment of the principle of resocialization. Christina Schlepper, for example, has empirically demonstrated on the basis of German criminal legislation since the mid-1970s that, with regard to the purposes of punishment reflected in the respective reform objectives and the justifications for legislative changes, a significant shift in emphasis away from the punitive purpose of resocialization towards deterrence and the protection of the population can be observed (cf. Schlepper 2014b). This means that laws and legislative changes are increasingly often justified with the deterrence of criminals and the protection of the population from crime rather than with the aim of reintegrating offenders, with Schlepper noting a particularly drastic shift here since the early 1990s. This is also in line with US-specific findings (e.g. Garland 2001) - whether the extent and intensity is directly comparable with the USA remains to be seen. In any case, it clearly indicates the direction in which developments are also heading in this country. With regard to sanctioning and sentencing practices, it can also be observed that not only in the USA, but also in European countries, the imposition of harsher sanctions is tending to increase (e.g. longer prison sentences), while early releases from prison are on the decline (cf. Kury/Obergfell-Fuchs 2006).

The extent to which the concept of resocialization has been pushed back can be seen not least from the fact that even institutions directly involved in the resocialization of offenders, such as probationary organizations, are now increasingly arguing that they are “protecting the population” (or at least feel compelled to do so in view of the increasingly punitive criminal policy climate): For example, the Austrian probation organization “Neustart” recently warned against budget cuts in the justice sector, against the backdrop of the drastic austerity plans of the new right-wing government under Sebastian Kurz, as this would have a “negative impact on public safety” (cf. press release of 22. 3. 2018). ¹⁶ In particular, cuts to probation services would mean that many convicted offenders would spend longer in prisons, which are already overcrowded (Austria also has a long and, by European standards, extensive tradition of “incarceration”; see Stangl 1988), which would inevitably increase the risk of recidivism. In this context, the self-description and service description of “Neustart” communicated to the outside world in the press release is revealing: “The association [”Neustart”, A.U.] provides its services for society in the core area of security. The monitoring and support of clients in freedom is carried out with the aim of preventing recidivism and thus increasing the objective and subjective safety of the population." “Resocialization” and “reintegration” of offenders into society was probably also the aim at some point. But in the meantime, not even those in whose immediate sphere of activity these tasks fall, and who for decades have propagated the resocialization of criminals as a necessary orientation and even the primary purpose of state punishment, seem to want to know anything about it.¹⁷

So-called “preventive detention” should also be viewed in the context of the increasing shift away from the purpose of enforcement of rehabilitation in favour of the protection of the population. This is a custodial measure to protect the general public from “dangerous” offenders. This can be ordered or reserved in the judgment as well as ordered retrospectively(!). There is nothing fundamentally new about such regulations - similar regulations already existed in many European countries in the 1920s, but they were abolished as unlawful practically everywhere after the Second World War. For some years now, however, they have been on the rise again under various names (in Austria, for example, the whole thing is known as “measure imprisonment”; see Stangl et al. 2015).¹⁸ This means that offenders classified as “dangerous” are increasingly simply locked away or “detained” after serving their sentence (see Pollähne/Rode 2010; Böhm 2011; Alex 2013). Once again, this is only topped by the USA: in most federal states there is even the possibility of sentencing offenders to prison terms of over 100 years.¹⁹ In countries such as Germany or Austria, on the other hand, an offender must at least have the prospect of release, which means that a regulation such as “preventive detention” is necessary if offenders are to be locked away as permanently or even forever as possible - a necessity that does not even exist in the USA.

It should be noted that all the criminal law developments mentioned above - as in the entire text - refer to “trends”. This does not mean (and this is precisely what positivist-empiricist criminologists often have a problem with) that empirically there cannot also be, at least at first glance, opposing developments. For example, a trend towards a decline in early releases from prison does not mean that measures and guidelines cannot still be issued that are in line with the concept of resocialization. Conversely, the existence of such measures does not automatically negate the longer-term trend towards a decline in early releases. Punitive tendencies and a prison system oriented towards resocialization can sometimes exist side by side. Dollinger et al. (2015), for example, have shown for juvenile criminal law in Germany that, for the time being, we are still dealing with a rather selective punitiveness that targets so-called “high-risk groups”, while the broad mass of juvenile deviants from the norm continue to be dealt with in the traditions of the welfare state reforms of the 1970s. The same applies to the (empirically clear) trend of rising imprisonment rates. This also does not mean that the imprisonment rate has to rise permanently, but that it can (and usually will) even fall in between. However, such stagnating or falling prisoner rates do not negate the long-term trend of rising imprisonment rates observed since the 1970s.²⁰

A specific variant of the above-mentioned increasing focus of criminal law on the protection of the population (to the detriment of the previously primary purpose of punishment, i.e. resocialization) can also be seen in the almost unprecedented career of “victim protection”, which has now even been elevated to the status of an independent purpose of criminal law. It would go too far at this point to discuss the problem of victim protection as an independent purpose of criminal law in all its implications. It should also be sufficiently clear what procedural shift in power is potentially associated with the appearance of the victim of a crime as an additional party (alongside the prosecutor as a further opponent of the defendant) in the criminal proceedings, the primary purpose of which is to determine the guilt or innocence of a defendant. It is no coincidence that a major point of criticism frequently raised by criminologists and legal sociologists is that the new victim orientation in criminal proceedings is in direct conflict with the principle of the presumption of innocence, as both the perpetrator and the victim are not actually established until a judgment becomes final (e.g. Pollähne 2012). Above all, however, a direct connection can also be established between the increasing focus on victims in criminal law and progressive punitive tendencies. This is because the new victim-oriented criminal policy (described by critics as “victimistic”, cf. Klimke 2008: 42f.; Cremer-Schäfer/Steinert 1998: 210f.) is unmistakably accompanied by a more repressive policy against offenders in the form of stricter criminal law and increased criminalization, or at least this is considerably facilitated by it (cf. Garland 2001; Jung 2000; Hassemer/Reemtsma 2002, Rzepka 2004, Trotha 2010).

Garland (2001: 142ff.), for example, regards the new victim orientation of criminal law as an essential feature of a criminal policy strategy of “punitive segregation”: “The need to reduce the present or future suffering of victims functions today as an all-purpose justification for measures of penal repression, and the political imperative of being responsive to victims' feelings now serves to reinforce the retributive sentiments that increasingly inform penal legislation. (...) If the centre-piece of penal-welfarism was the (expert projection of) the individual offender and his or her needs, the centre of contemporary penal discourse is (a political projection of) the individual victim and his or her feelings” (ibid.: 143f.).

The “renaissance of the victim” (Jung 2000) is thus essentially due to - or at least goes hand in hand with - a “re-emotionalization” (Karstedt 2007) and “re-moralization” (Frommel 2016) of criminal justice, i.e. empathy with the victims of crime (especially victims of violence and sexual violence) and consideration of their feelings is becoming both a requirement that is now placed on the criminal process and a central element of criminal policy as a whole.

This is reflected not least in certain forms of sanctions, such as “shaming”, which has recently been used (again) increasingly, for example in out-of-court victim-offender mediation for the purpose of clarifying norms (cf. Münster 2013). The aim is to trigger remorse and feelings of guilt in a delinquent through a kind of ceremonial disapproval, which is intended to deter them from committing further offences - a form of punishment that bears a striking structural similarity to forms of sanction that were thought to be long gone, such as the early modern pillory (even if relevant criminological theories emphasize the “reintegrative” function of today's practice of “shaming” and explicitly distinguish it from “disintegrative” forms such as the pillory; cf. Braithwaite 1989). In this light, it is probably precisely the aforementioned emotional dimension of the discourse on victimization in criminal law that is particularly conducive to expressive punitivity.

Feminist gender discourses have had (and continue to have) a major influence here, which in recent decades have increasingly brought the problem of male violence against women, especially in the social sphere, into the focus of criminal law and have led, among other things, to numerous adjustments in sexual criminal law (e.g. to the creation of the criminal offense of domestic rape) as well as to various laws for protection against domestic violence (see Hagemann-White 2002; Künzel 2003; Lembke 2012, 2014 for examples of corresponding discourses). In criminology and sociology of law, the connection between victim orientation and punitivity in particular is discussed extremely controversially along this gender dimension and in the context of gender-based violence, whereby those who associate improvements in the protection of women from sexual and other forms of male violence and the associated criminalization and punishment demands with punitive tendencies in criminal law are quickly confronted with the accusation of wanting to discredit feminist legal policy (cf. Lembke 2014: 273f.). The fact that this accusation cannot always be completely dismissed in view of the recent strong increase in anti-feminist tendencies, as well as the undoubted fact that criminal law developments in the area of protection against violence and sexual criminal law mean a considerable improvement in the situation of many women, does not, however, diminish the plausibility of the finding that these improvements fit into or go hand in hand with an increasingly repressive tendency in the development of criminal law. From a value-critical point of view, reference should be made here to the “wildness of patriarchy” (Roswitha Scholz), in which a feminist policy directed against male violence against women (which is drastically increasing in the crisis), as long as it remains immanent to the system, obviously runs the risk of speaking out in favor of a more punitive and repressive orientation of criminal law. Incidentally, there is also an open flank of feminist victim protection policy to right-wing populist discourse that is as obvious as it is alarming: right-wing populist parties in particular like the role of “victim protectors” - see, for example, the FPÖ in Austria, which has won votes in practically every election campaign in recent years with slogans such as “victim protection instead of perpetrator protection”.²¹ The reason for the enthusiasm of right-wing populists for “victim protection” is, of course, obvious: victim protection is already fundamentally a deeply patriarchal motive. So when feminist politics today attaches victim protection to its banners, this only confirms all the more the “feralization” to which capitalist patriarchy is now subject. Right-wing populists are also the ones who most vehemently advocate a repressive law-and-order policy parallel to the demand for victim protection, always propagating a tougher stance towards (foreign) criminals and locking them up (or deporting them). Right-wing populism, which has been rampant for years (and is now increasingly culminating in neo-fascism), thus most clearly reveals the patriarchal and tendentially repressive core of victim protection efforts, which not coincidentally goes hand in hand with an increasing punitivization of criminal law.²²

Not only the increasing punitivity of criminal law, but also the security discourses that have become increasingly virulent in recent years and the rapid expansion of associated state security and surveillance measures (see Hansen 1999; Kunz 2005; Haffke 2005; Singelnstein/Stolle 2006; Albrecht 2010; Groenemeyer 2010) must be viewed in the context of a progressive “crisis of work”. This is obvious insofar as the relevant security legislation of recent years is by no means limited to the fight against terrorism and organized crime (which is the main justification for the corresponding laws and measures), but is in principle and increasingly directed towards the surveillance and control of the population as a whole (cf. Trojanow/Zeh 2009).²³ Under conditions of increasing mass unemployment and precarization, the danger to “internal security” emanates precisely from the population itself, which a growing state surveillance apparatus must ward off preventively. The new repressive criminal law therefore not only manifests itself in a tightening of the penal system as such, but also follows a logic of prevention: if, statistically speaking, anyone can potentially become dangerous, full surveillance is needed to weed out the “dangerous”.²⁴ Punitivity and the criminal policy discourse on security thus have their common basis in the “crisis of the working society”, in which social conditions become more insecure to the extent that work becomes precarious or is lost as the only (system-immanent) basis of life for an ever larger part of the population. It is therefore no coincidence that the protection of “internal security” forms an essential basis of legitimacy for punitive measures, in particular the tightening of existing and the creation of new criminal law norms.²⁵

A direct political function of punitiveness should probably also be taken into account here, which goes beyond the mere administration of mass unemployment, growing poverty and crime: as Garland (2001), for example, emphasizes, the punitive nature of criminal policy can also be understood in part as a substitute political action in order to demonstrate the ability to act politically by populist means in the face of massive losses of control in economic issues. With a view to the “crisis of work” (which Garland admittedly does not have in mind in this form, but places the “punitive turn” primarily in the context of neoliberalism and “economization”), it could therefore be said that crime and the fight against it are becoming an all the more important political field, the less politics has to do with social problems that it can solve to secure mass loyalty, but increasingly with those that it can only manage - and the “crisis of work” can no longer be solved inherently in the system, as it results from the capitalist dynamics of valorization and productivity itself.

Even a vehement critic of Rusche/Kirchheimer such as Heinz Steinert has repeatedly and critically pointed out such populist criminal-political tendencies and the phenomenon of a new “lust for punishment” in the last years of his life (e.g. Cremer-Schäfer/Steinert 1998). However, all these phenomena can probably not be adequately grasped and understood in their scope and certainly not in their causes if the contextualization of the new repressive criminal law in the aforementioned crisis of the capitalist working society is omitted, but rather, on the contrary, corresponding interpretations are possibly placed under the general suspicion of economism. The “crisis of work” is not simply an economic problem, but a problem for society as a whole, with corresponding effects and implications for society as a whole. Work is eroding one of the most essential foundations of modern, capitalist society, on which it and its institutions, in particular the welfare state, are built. Consequently, one of the primary political reactions to this crisis trend is the successive dismantling of welfare state structures, as has been observed in practically all Western countries (at varying speeds and to varying degrees) for years (Hartz IV, etc.). Another, complementary reaction, which not least has to deal with the consequences of this politically initiated social clear-cutting, is the increasingly repressive administration of the spreading poverty and precarization. Both point to the comprehensive nature and depth of the problem associated with the “crisis of work”: if there is no longer any prospect of successfully combating unemployment and poverty due to a lack of work, politicians can only move on to combating the poor and unemployed themselves. And a key instrument for this is criminal law.

In the current situation, there are even some parallels to what Marx called the “blood legislation” in the early phase of capitalist modernity - albeit with the essential difference that the current “repressive turn” in criminal law (at least for the time being) does not come close to the form and intensity of the repression against the poor, beggars and criminals at that time; above all, however, that in the one case it is a phenomenon of the still incomplete constitution and inadequate enforcement of the capitalist mode of production, and in the other case a symptom of the crisis of the capitalist “working society” itself. Whereas the criminal repression of early capitalism was directed against the many “superfluous” people who were “hurled onto the labor market” (Marx) in a capitalist society that was only gradually taking shape, without finding sufficient jobs there, today it is the “superfluous” people of a capitalist labor society that is gradually becoming unemployed, whose labor is no longer needed in the production process, without people being freed from the compulsion to reproduce themselves materially through wage labor. So if the system did not produce enough work back then to integrate the masses into wage labor contexts, it no longer produces it today. The consequences - at different levels of social development - are more or less the same: namely the emergence of a steadily growing mass of pauperized people, pushed into crime and the shadow economy, which the capitalist functional elites only know how to deal with repressively - albeit currently certainly still to very different degrees - with the help of criminal law.

In some cases, the historical parallels even extend to the level of specific forms of sanctions and punishment: As already mentioned, in recent years a new (or rather “new old”) concept has found its way into criminology in the form of so-called “reintegrative shaming”, which aims to publicly shame an offender (see Münster 2013) - a form of punishment that probably immediately evokes memories of a pillory. Here, the “dark Middle Ages”, which are otherwise denounced as particularly “inhumane” and “barbaric” in comparison to the “humanized” present, do indeed send their regards.

A further parallel to the early capitalist phase - not so much (or at least not primarily) relating to criminal law, but to society in general - can probably also be seen in the massive increase in antiziganism in the current capitalist crisis. As already mentioned earlier, the early capitalist repression against all the “superfluous”, which the socially devastating process of upheaval from the medieval feudal to the capitalist “working society” brought about, was already linked to tangible extermination intentions, which were directed in particular against the “gypsies”, who were perceived as particularly “superfluous” because they were primarily perceived as work-shy and crooks. According to Roswitha Scholz (2007: 212), “the gypsy” represents the “homo sacer par excellence of the commodity-producing patriarchy ‘²⁶ because he embodies everything that capitalist society denies its members or that the modern commodity and labor subject must deny itself in iron work and self-discipline. The resulting aggression is therefore directed against those population groups that can (actually or supposedly) escape these failures and this (self-)discipline, whereby a preferred projection surface for such fantasies has traditionally been “gypsies”. Particularly in today's “crisis of the working society”, in which ever larger sections of the population are becoming de facto “superfluous” for work or are at least increasingly threatened by “superfluousness” (see Scholz 2008), such projections are once again taking on particularly brutal forms, which are articulated not only, but especially in a massive increase in antiziganism. It is above all the threat of social “superfluousness” that is to be warded off, which does not result in criticism of the increasingly intolerable social conditions, but rather takes the form of relentless aggression against or demarcation from those who are already manifestly “superfluous”. It is no coincidence that forms of state discrimination and repression against “gypsies” are on the rise again in this social climate (see Espinoza 2014).²⁷

This admittedly somewhat speculative comparison of early capitalist and late capitalist repressive criminal law should of course not be (mis)understood as a thesis of a “relapse” of criminal law into earlier, possibly even pre-modern forms or aggregate states. Rather (and quite the opposite), it refers to the fact that early modern and late modern criminal law lie on one and the same continuum and that there is, so to speak, only a gradual but not an absolute difference between the “blood legislation” of early capitalism and the supposedly humanized criminal law of the present. The bourgeois constitutional state has a repressive core, and all rights and amenities such as human rights etc. only apply with reservations, are linked to a successful exploitation of value and can therefore also be withdrawn again (just as all material achievements can be closed and shut down due to unfinanceability). This is why the pendulum of criminal law can, as is currently the case, swing back in a more repressive direction if the circumstances of society as a whole make this necessary - even if the repression qua criminal law is unlikely to take the form of systematic torture or executions, or at least not so easily. Nevertheless, this cannot be categorically ruled out, as the USA has demonstrated with its treatment of so-called “unlawful combatants” in the notorious Guantánamo prison camp (cf. Rose 2004).

In this context, the emergence of so-called “enemy criminal law” should also be mentioned in general. This refers to a (currently conspicuously increasing) restriction and limitation of constitutional guarantees “by excluding certain circumstances and persons (groups) from their protection and subjecting them to disenfranchisement” (Singelnstein/Stolle 2006: 106). Such restrictions are evident, for example, in anti-terror laws, laws against organized crime or in the current constantly tightened asylum legislation. Günter Jakobs, the founder of the term and legal apologist for “enemy criminal law”, justifies it in terms of legal philosophy, in particular with reference to Thomas Hobbes and Immanuel Kant. According to this, a person whose actions violate the “social contract” places themselves outside of society, which is why they not only lose all rights but also their status as a person and thus become an enemy of society who must be combated accordingly (e.g. Jakobs 2010). The proximity to Agamben's figure of the “homo sacer” (Agamben 2002) is almost striking here: a person defined as an enemy of society ceases to be a legal subject in the narrower sense and thus also a “human being”. The subject (or rather object) of enemy criminal law is literally outlawed, a being without civil rights and thus nothing more than a piece of biomass (“naked life”, as Agamben calls it). Even the objections of democracy fetishists such as Oskar Negt must remain helpless against such tendencies when they complain, almost morally, that “the law (...) not only [protects] society and the state from the criminal, but also vice versa: the law also protects the criminal from arbitrary attacks by the state and acts of revenge by citizens. The authors of the Basic Law deliberately did not limit the protection of human dignity to the law-abiding citizen; rather, they speak of the inviolability of human dignity, of all human beings” (Negt 2010: 109). The very existence of enemy criminal law proves what “critics” such as Negt would like to deny: that the law (as well as modern democracies constituted in legal form), in case of doubt, does indeed recognize a difference between persons who are legal subjects and those who are not (or no longer) legal subjects, but who thereby also cease to be human beings in the narrower sense of (human) law. Refugees who are to be prevented from crossing the border by walls and barbed wire can experience first-hand every day the difference between them and, for example, an EU citizen with the constitutionally guaranteed right to freedom of movement. The very idea that it would be of any use to a refugee prevented from crossing the border by military force to invoke his human rights seems absurd. In a late capitalist world that produces more and more economically “superfluous” people, democracy and the rule of law produce just as many lawless “homines sacri” who must be kept in check, controlled, imprisoned and - who knows - perhaps even killed in the final instance (see Böttcher 2016).²⁸

Conclusion

Against this backdrop, Rusche and Kirchheimer's thesis on the connection between social structure and the need for labor and the penal system still proves to be highly topical today - albeit in reverse. It is particularly suitable, as this article should at least begin to show, for explaining in more detail the punitive tendencies in contemporary criminal law, which are also perceived and much discussed in academic criminology, in terms of social theory. However, the theoretical perspective thus opened up goes beyond the punitiveness thesis in its predominantly advocated form and therefore offers a more far-reaching explanatory approach, as the corresponding developments - like the “crisis of work” itself - are not primarily attributed to neoliberalism, economization and the associated state restructuring. Rather, these neoliberal restructurings are themselves only seen as political reactions to a much more comprehensive process of the successive “disappearance” of work from the capitalist production process and the associated social and economic effects, which in criminal law take the form of increasing punitiveness, security ideologies and state surveillance.

The “crisis of work” is far from having reached its peak. If current studies on the “future of work” are to be believed, thanks to further advances in the field of digital technologies, we are on the verge of a new wave of automation that could destroy a good half of all jobs in the next two decades (see Frey/Osborne 2017; Bowles 2014). Even if the job savings associated with digitalization are not as significant as the studies cited above predict, this would inevitably mean a massive increase in unemployment, which is already high globally. If the thesis put forward in this article of a constitutive connection between the “crisis of work” and punitive criminal law is correct, then it can certainly be assumed that the repressive and punitive tendencies in criminal law in recent years only describe a temporary development and that there is a threat of further intensification as the “crisis of the working society” progresses.

The actual development will, of course, depend largely on the further course of the crisis. If, in the foreseeable future, the crisis also reaches the stage of manifest disintegration of state structures in the Western centers, as has long been the reality in the numerous and ever-increasing number of “failed states” on the periphery of the capitalist world system, the question of the punitive nature of criminal law raised in this article will probably no longer arise, or at least in a different way. “Failed states” are a particularly vivid reminder of something that is often forgotten or suppressed in our part of the world: namely that the establishment and maintenance of state structures is essentially dependent on the successful exploitation of value, which is what creates the basis for their financing in the first place (in the form of taxes). If this basis disappears, state power also erodes and anomic and civil war-like conditions spread in the affected countries (often with members of the eroded and correspondingly “feral” state security apparatus playing a key role). Against this background, the diagnosis of a “return of repressive criminal law” should therefore not be misunderstood as a thesis of the return of a “strong state”. On the contrary: the state is merely managing the crisis with the means it has (and as long as it still has them) - and one of its preferred means for this is criminal law.

Literature

Agamben, Giorgio (2002): Homo sacer. Sovereign Power and Naked Life, Frankfurt/Main.