A Homage to Louk Hulsman - Societe Internationale de Defense

A Homage to Louk Hulsman - Societe Internationale de Defense

A Homage to Louk Hulsman
by
ADOLFO CERETTI
Associate Professor of Criminology, Faculty of Law,
University of Milano-Bicocca, Italy
Assistant ISSD Secretary-General
1. Peines perdues. Le système pénal en question (Le Centurion, Paris,
1982), which is undoubtedly Louk Hulsman’s most meaningful and best
known work, was written in collaboration with Jacqueline Bernat de Célis
and published, as we all know, in 1982, that is just over twenty years ago,
though it seems much longer ago.
The intellectual fervour, the noblest utopias, the probing questions and
the long-term planning that at the time challenged the theoretical
foundations, the ideologies and the organisation of the basic systems of
social control – criminal law and imprisonment, psychiatry and mental
asylums – now seem a thing of the past.
More specifically, the crux of the proposal put forward by the
abolitionist theory Louk Hulsman was so fond of, which went so far as to
hypothesise the suppression of the modern penal system as such – that is to
say substantive and procedural rules and prison organisation – would seem,
even upon close scrutiny, to have dissolved in the meanders of a
labyrinthine set of policies which, clearly showing an absolute disregard for
the risk of impinging upon the sensitivity of contemporary human beings,
advocate and apply – virtually all over the world – principles and
ideologies clearly bearing a conservative and repressive imprint. Some of
these – the most popular – go by the name of “zero tolerance”.
2. The opportunity offered by the publication of this issue of the Cahiers
de défense sociale, dedicated to Hulsman on the occasion of his 80th
birthday, is truly unique. A number of scholars from all over the world
have taken up the invitation extended by the Cahiers to think about the
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acknowledged meaningfulness, value and topicality of some of Hulsman’s
theories despite the strong dissent caused by his stand among penal and
criminal scholars.
As I have already briefly mentioned, the issues intertwining with
abolitionist utopias1 are clearly born of the desire and the will to challenge
the very foundations of the system of legitimisation underlying modern
punitive systems. The intellectual and emotional drive behind such a strong
stand for doing away with criminal law could arise only from a very
articulate Weltanschauung as part of a “coherent and original” global vision
of society and of the criminal issue, as Marc Ancel pointed out in his
afterword to Peines perdues.
Though clearly not pretending to offer an organic reconstruction of
Hulsman’s theories, I wish to recall that the deep sensitivity he displays
towards community models, towards the privatisation of conflicts and
alternatives to the penal system plunges its roots in a multi-faceted hybrid
cultural fabric, which ranges from the Christian tradition to some tenets of
anarchical theories. As a matter of fact, as already promptly pointed out
when Peines perdues was first released by a scholar as careful and as
distinguished as Pio Marconi,2 his suggestions for alternative solutions to
the social conflicts born every time a crime is committed, has much in
common with the ideas put forward, in the late nineteenth-century, by some
humanitarian thinkers (suffice it to think of Dorado Montero) who radically
challenged – far ahead of the times – the notion of social defence or,
alternatively, tried to push it to the limits, going so far as to wholeheartedly
advocate the overthrowing of the system of guarantees and of the modern
penal system. Suffice it to think of the community solution for conflicts and
crimes advocated by Kropotkin, of the vision of a society (consortium)
capable of looking upon diversity as something normal (Stirner), or of the
just as abstract belief that arbitration can settle penal disputes (Proudhon).
Hulsman, taking his distances from the well-established tradition which
– according to him – creates a strong link between the logic of the Catholic
Church’s centralised power and the power of law and of penal justice, goes
so far as to challenge any form of power enjoined with the task of defining
what “is good” and “what is bad”, and to mete sentences on the grounds of
1
2
As a matter of fact Hulsman has always denied the utopian nature of
abolitionism, repeatedly claiming in Peines perdues that far from being
utopian, the abolitionist perspective is a logical necessity, denoting a realistic
attitude, a need for freedom.
MARCONI P., (1983), “La strategia abolizionista di Louk Hulsman”, in Dei
delitti e delle pene, 2, p. 222.
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such a separation. His ontological critique to the presumed existence of a
natural foundation to the notion of crime moves from his refutation of the
very idea that man, in order to govern his passions and destructive
impulses, should - in what is by now a markedly lay State – fall back upon
a centralised system capable of mortifying the plethora of different
meanings and solutions and allow such a system to take decisions resulting
in punishments, which actually are nothing but violence, the curtailment of
freedom, at times even death.
But then “… how can the relational models the system now smothers be
allowed to survive outside the institutional sphere?”3 As previously said,
the rational solution is to abolish the “penal”, to start by subverting the
language it draws from to define reprehensible behaviour and then go on to
deconstruct the institutions – law-courts, prisons, etc. – it is embodied in.
Crime, Hulsman claims, has no ontological reality and is not the object but
the product of criminal policy. Criminalisation is one of the many ways to
construct social reality. Moreover, the categories of crime are based on the
constructions of the criminal justice system and hardly ever serve the real
interests of flesh and blood people, that is to say victims and offenders.
For Hulsman, the task is then to study the problematic situations (an
expression which replaces – in his view – the identifying expressions such
as offence, crime and criminal act) and to identify the contradictions at the
heart of the various criminal justice systems. In other words, one is
interested no longer in the long-standing issue of the causes of criminality,
but rather in the possibility of identifying sufficiently sound criteria on the
basis of which to create communicative channels between “reasoning
actors”: on the one hand the parties giving in to problematic behaviour, on
the other the victims. Only a direct analysis of the real problems, as they
exist in the social consortium, can tell us which responses mirror public
feelings. What has always been missing, according to him, is a level of
interpretation capable of explaining if people’s notion of criminality has
any analogy with the notion of criminality applied by the institutions. As
Hulsman warned, as long as we fail to shed light on the issue, we will not
be able to foresee whether the interventions traditionally adopted have
merely repressive effects or some other effect. In the eighties, when
inviting the whole scientific community to give the matter some thought, to
come up with reasonable answers, he claimed: “when I first thought that
the concept of criminality might not be used by people to organise their
own direct experience in terms of daily life, but might instead be a response
produced by the institutions using this specific language, I immediately
3
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HULSMAN L., BERNAT DE CÉLIS J., Peines perdues, op.cit., p. 105
decided it might prove interesting to carry out empirical research to check
out that hypothesis.”4
Many have engaged in such empirical research, but it cannot be asserted
that the findings are in any way conclusive or validate Hulsman’s ideas. As
a matter of fact, current findings in the field of penal policies would seem
to validate other data and other research-studies, now deemed to be far
more meaningful and far more likely to solve the problems afflicting
justice. Suffice it to take but one example. In most Western world
countries, as of the mid-seventies, the constant rise in crime rates has
somehow lent “legitimacy” to the revival of a markedly punitive attitude,
which cannot surely be taken for the longed for horizontal solutions to
problematic situations. Severe sentences and more frequent recourse to
prison terms are – in short – the prevailing paradigm. In the United States,
which truly represent a workshop for models of control policies in the penal
field which may well be exported to other countries, what now prevails,
besides the previously mentioned “zero tolerance” policies, is a number of
provisions foreseeing an increased use of imprisonment, Three Strikes and
You’re Out and mandatory minimum sentencing laws and parole release
restrictions, the revival of chain gangs and corporal punishment, supermax
prisons, the multiplication of capital offences and executions, community
notification laws and paedophile registers. In short, severe sentences – and
the old rhetoric based on “law and order” – are resorted to as marks of
authority directed at infusing a new sense of security. Such penalties are
also supported by public opinion and above all by the mass-media, who
view condemnation and the meeting of sentences as useful tools to relieve
tension, by conveying a temporary and rewarding “sense of belonging”,
countering the crime and the “feeling of insecurity” it generates.
What is left, then, of the advocated change towards broadly organic
forms of solidarity – upheld among others also by John Galtung, a thinker
Hulsman has always acknowledged he was greatly indebted to? What is left
of the proposals for an informal police activity, for the civilisation of
justice, for initiatives directed at the victims, and of the calling for a
growing reconciliation of juxtaposed interests via solutions based on
complementarity?
A sensible objective answer to the above questions will provide us with
a vivid accurate picture of the situation. Those who have carefully studied
the solutions resulting of the offender-victim and reparative justice
paradigms are, for instance, aware of how in many countries they are now
4
HULSMAN L., (1983), “Abolire il sistema penale?”, in Dei delitti e delle pene, 2,
p. 78.
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regularly to be found operating side by side with criminal justice, at times
making up for its centralising tendency though without substantially
changing the overall balance of the system. These paradigms unexpectedly
flower in social territories being progressively abandoned by formal order
production systems. Conflicts and family and neighbourhood violence,
social decay, vandalism, petty criminality in the metropolitan outskirts and
racial intolerance produce suffering and large victimization which in its
turn raise an equally large demand for the re-affirmation of justice, a
demand which all too often remains unanswered. Against this backdrop of
political haziness the past twenty years have witnessed the emergence of
social dynamics posing as objectives the task of infusing a sense of
responsibility in civil society and the re-appropriation of capacities
allowing for self-resolution of conflicts.
The public display of mediation and of restorative justice paradigms
thus goes to place itself in a scenario definitely full of contradictions, where
juxtaposing policies intertwine and tend to annul one another. But the spirit
animating them and imposing, though marginally, their appeal linked to
informality, mildness, simplicity, proximity are first and foremost the
outcome of the battles started and fought by Hulsman.
3. Let me now briefly turn my attention to the noteworthy writings that
several distinguished scholars offered as gifts on the occasion of Louk
Hulsman’s eightieth birthday, when invited to write on the theme of
Criminal law between abolitionism and zero tolerance.
From Spain, Eduardo Demetrio Crespo presents us with an ideal
opening paper. With the skill that only somebody who really has a deep
knowledge of the subject, in just a few pages he presents the “philosophical
foundations” of abolitionism, its “premises and theoretical bases”. Having
outlined the picture, Demetrio Crespo then inscribes in it Hulsman’s
doctrine, as evinced from his most original pages. He then moves on to an
overview of the main criticisms levelled at abolitionist theories (be this
criticism levelled on methodological, anthropological and sociological
grounds, or animated by a desire to guarantee civil rights or mete
retribution or have it a meta-scientific origin). What emerges as a certainty
from all this – possibly thanks to Hulsman’s abolitionism – and what
Demetrio Crespo adamantly believes in is the idea that punishment should
be regarded as an evil, and that criminal law should move more and more
towards minimal intervention solutions.
From Italy, a country where the invitation to write something for this
occasion has engendered a heartfelt response, Fausto Giunta invites us to
consider that the ever mobile boundaries of criminal law are now traced by
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the notions of “abolitionism” and “zero tolerance” which, it must be
acknowledged, do not simply influence or impact on penalty but, though to
a different extent, shape its practice and operate through it. Stimulated by
this awareness, Giunta thoroughly questions the role criminal law and
juridical science should take on in an age in which both find it hard to
prove their legitimacy since ours is the age in which the veil that hid the
interplay between power and violence has been lifted once and for all.
Derridda docet!
Francesco Palazzo constructs his convincing contribution by pointing
out that, without necessarily embracing radical abolitionist utopias, it is
altogether legitimate to question the idea that a monolithic single solution
such as that of punishment may prove to be socially adequate to counter
every form of criminality. In this specific instance, his attention focuses on
the crimes committed by immigrants, a phenomenon which increasingly
impinges upon urban security and upholds the “zero tolerance” policies
adopted in several countries throughout the world. His line of reasoning is
extremely thought-provoking.
In his thorough overview of criminal policy in Italy over the past few
decades – such policy being judged basically ambiguous and irrational –
Alessandro Bernardi points out that if on the one hand the logic of
punishment lives on in many fields and is even fuelled by “exemplary”
recourse to penal sanctions, it is just as true that more and more people are
willing to create a minimum criminal law system and that, following the
introduction in the year 2000 of the figure of the Justice of the Peace, the
foundations are being laid – albeit on the margins of the legal system – to
create more constructive and less repressive mechanisms and solutions:
“Be it consciously or unconsciously, therefore, abolitionist ideas tend to
catch on in terra hostile, if not doing away with at least modifying criminal
law.”
Anabela Miranda Rodrigues intervenes from Portugal with an extremely
articulate and scathing contribution. One of the issues from which she
moves and around which her line of reasoning revolves is that criminal law
must, nowadays, come to terms with a growing demand for security, with a
growing palpable fear of criminality, with the fact that crime is increasingly
over-represented. Moreover, all these phenomena take place in an
increasingly globalised world where criminality – above all organised
criminality – uses the logic and the potential of globalisation to its own
advantage. As a result, the appeal in favour of the rights of those who
commit offences and of re-socialising approaches appear to be more and
more anachronistic, while actuarial policies and demands for incapacitation
keep on gaining ground. What can be done, then, to control chaos? Is the
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idea of an European criminal law the final answer? What are the truly
viable political-criminal options? How is it possible to find a balance
between demands for solidarity, the respect of individual dignity and
security?
A vigorous attack on “law and order” and “zero tolerance” policies has
been launched by Massimo Pavarini, according to whom they are part of a
short-sighted approach foreseeing old solutions to new problems. There
failing to be an adequate culture, in a society like ours characterised by
high crime rates, widespread risks tend to be met with insistent recourse to
penalties. And it is not the crisis of politics as such that brings about this
growing recourse to criminal law as an answer to the social demand for
penalties, but rather the fact that we are now witnessing a re-qualification
of politics, of the desire to create counter-powers there where none was
previously found.
From South America, and more specifically from Venezuela, Alì Lasser,
in his pages rife with learned quotations (from Don Quixote to Dante
Alighieri, to Dostoyevski), takes up another issue which is particularly
important to Hulsman and the abolitionists: that of solidarity. Lasser’s
considerations all revolve around and move from the question, already
posed in Peines perdues: “Why solidarity, which is inborn and present in
man, fails to work in criminal law?”
Basing himself on the relevant criminal legislation and having regard
also to the specific Argentine situation, Carlos Julio Lascano sets out to
answer the following questions:
a) given the social State model and the rule of law, would a
“modernisation of the penal system” based on a zero tolerance
criterion be acceptable or would it once more bring about an
authoritarian penal system?
b) To what extent may one deem reasonable some of the rules born of
the “zero tolerance” model, the model as such being one of the
specific manifestations of modern penal law?
The issue from which Pedro R. David (Argentina) moves was instead
postulated by Jacqueline Bernat de Célis, who in a paper written in 1985,
insisted that the abolitionist stand is undeniably “opposed to” the penal
system and altogether in favour of a society having no penal system, but
that it also implies a “positive”, pragmatic approach to social problems and
the solutions to be adopted, which must all be “reinvented”. Yet, in the
light of these words, David wonders to what extent the system of penal
justice has really lost ground. Many of the answers David comes up with
may also be found in a meaningful book titled Globalización, Prevención
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del Delito y Justicia Penal, which has recently been translated also into
Italian (Giuffrè, Milan, 2001).
Constantin Vouyoucas (Greece) has painstakingly and brilliantly
suceeded in coming up with an analytical interpretation of the notions of
de-criminalisation and alternatives to trials and sentences, such as
diversion (to quote but one), moving from the perusal of the reports drawn
up by the Council of Europe and the writings of the best thinkers on the
subject (as, by way of example, Marc Ancel).
A totally different approach is the one chosen instead by Gabrio Forti
and Vincenzo Ruggiero.
Forti submits the first findings of a very important research-study he has
engaged in with a group of collaborators of his, on the way in which the
mass-media, and above all television, select, choose and interpret crime
news, contributing – by doing so – in shaping our mental perception of
crime. It comes as no surprise that in Italy television news coverage gives
such ample coverage to the description of the criminal event, all the more
so if it is a violent event, devoting far less attention to the human elements
of the event and to the offenders and victims. As Hulsman writes, “medias
select events which are a-typical, present them in a stereotypical fashion,
contrast them against a backcloth of normality which is over-typical”.
The approach chosen by Vincenzo Ruggiero, a professor of sociology in
London, is instead markedly … literary. He dwells on the description,
depiction and notion of prisons and the miserable conditions associated
with them, as emerging from the works of Victor Hugo and Octave
Mirbeau. A quotation will suffice to understand why Hulsman will surely
appreciate these pages. Hugo as a matter of fact writes that prisons are not
in nature, but “man never ceases to pervert his own nature through the
tragic pride of condemning his brother”. And what about Mirbeau, who
goes so far as to hold that punishment reassures and regenerates the
righteousness of the law abiding community, on the one hand, and metes
out in legally sanitised fashions, on the other hand, our desire to inflict
pain?
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