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Abolitionism is not only a strategy or a set of demands aimed at the reduction (or suppression) of custody, it is also a perspective, a philosophy, an approach. Penal abolitionism challenges conventional definitions of crime and the law, while defying official views of the meanings and effects of punishment. This research paper examines the origin, philosophy, and achievements of penal abolitionism, collecting and discussing the key arguments and views expressed by its leading proponents. It sets off with reference to Tocqueville’s view that prisoners lose their right to humanity and Foucault’s remarks, during his visit to Attica, about the “consumption and elimination” of the excluded enacted by prison institutions. It then discusses the degree to which the abolitionist stance can be deemed utopian and presents the classic arguments which constitute the components of that stance. Three areas are addressed: crime, the law, and punishment, namely, the key areas in which abolitionism elaborates its own philosophy while distancing itself from conventional sensibilities and, at the same time, responding to its mainstream critics.

Introduction

Abolitionism fights against the “curious mechanism of circular elimination” identified by Foucault during his visit to Attica, where he noted that society excludes certain specific types of its members, and by sending them to prison, it breaks them up, crushes them, physically eliminates them. Then

The prison eliminates them by “freeing” them and sending them back to society; the state in which they come out insures that society will eliminate them once again, sending them to prison. Attica is a machine for elimination, a form of prodigious stomach, a kidney that consumes, destroys, breaks up and then rejects, and that consumes in order to eliminate what it has already eliminated. (Simon 1991, p. 27)

Similarly, observing the American prison system, de Tocqueville (1956) noted that offenders released from custody remained among humans, but they lost their rights to humanity; people fled them as impure, and even those who believed in their innocence abandoned them. Once released, they could go in peace, with their live generously left to them, but a life worse than death.

Against this strategy of elimination, the primary challenge for penal abolitionists is “to construct a political language and theoretical discourse that disarticulates crime from punishment” (Davis 2008, p. 3). However, such strategy is accompanied by alternative conceptualizations of crime, critical analyses of law, and radical thinking around the very nature, function and philosophy of punishment.

According to one of the most representative figures of this multifaceted school of thought, abolitionism is a manifestation of

the general human urge to do away with and to struggle against those phenomena or institutions of a social, political or religious nature that at a given time are considered to be unjust, wrong or unfair. (Bianchi 1991, p. 9)

The “general human urge” in the definition provided by Bianchi is the same urge that gave strength to the ancestors of contemporary abolitionists, namely, the women and men who fought against slavery, and later the campaigners who battled, and continue to do so, for the abolition of the death penalty. But the battle also continues on other fronts. Abolitionism posits that the criminal justice system as a whole constitutes a social problem in itself. Some forms of abolitionism, however, are already in place. Surely, there is an abolitionist stance in the proposition that the state-centralized administration of penal justice should be replaced by decentralized forms of autonomous conflict regulation. Echoes of abolitionism are also heard when critics warn that, if we want to reform the penal system, we have to start a process of collective conversion away from the traditional and conventional grammar that characterizes it. It should be reiterated, therefore, that abolitionism does not advocate the immediate suppression of all custodial institutions, a program which, on the other hand, would enjoy the support of many a critic who find the conditions of imprisonment all over the world shameful. Abolitionism t is not a “program,” but an approach, a perspective, a methodology, and most of all a way of seeing. By observing the concepts and the cultural matrix which give shape to abolitionism, one may discover that this school of thought sits very comfortably within Western popular culture, which guides the conduct of many and which many could mobilize to justify their conduct.

Utopia?

If the activist ancestors of abolitionism are the men and women who fought against slavery and the death penalty, their philosophical ancestors are harder to identify with precision. But let us start with a general, preliminary characterization. Abolitionism, I would submit, is grounded in a variety of social philosophies which are primarily concerned with discussing processes of social development that can be viewed as pathological or as “misdevelopments” (Honneth 2007). Among these philosophies are those expressing the view that societies should support a rich plurality of activities, each valuable in its own right, and that each person should be treated as an end, not as a mere means to the ends of others. This Aristotelian view would deny “that a society can be flourishing as a whole when some members are doing extremely badly” (Nussbaum 2000, p. 106).

There is nothing utopian in attempts to redress “remediable injustices”: abolitionists do not pursue perfect justice, rather, they aim at enhancing justice. Their focus on social interactions rather than institutions, on precise settings in which people live rather than official norms and extraneous professionals, locates them in a specific political and philosophical tradition. According to a distinction suggested by Amartya Sen (2009), there are contractarian approaches and comparative approaches to the idea of justice. The former establish general, universal, principles of justice and are concerned with setting up “just institutions.” For such institutions to function, total compliance of people’s behavior is required. The latter assess the different ways in which people lead their lives, actually behave and interact. A contractarian approach is described by Sen as “transcendental institutionalism,” in that it searches for the ideal institutions capable of forging a perfectly just society. By contrast, a comparative approach is led by the search for social arrangements that satisfy people in their concrete collective life.

When people across the world agitate for more global justice – and I emphasise here the comparative word “more” – they are not clamouring for some kind of “minimal humanitarianism”. Nor are they agitating for a “perfectly just” world society, but merely for the elimination of some outrageously unjust arrangements to enhance global justice. (Sen 2009, p. 26)

Comparison entails information, which in turn presupposes proximity to the actors involved in the process of forging ideas of justice. Abolitionists propend for this type of approach.

Some forms of human suffering may be unavoidable, and perhaps cannot be remedied in some particular place or at some particular time. Correspondingly, however, there are forms of suffering that are needless at particular times and places. According to Gouldner (1975), it is the sociologist’s job to give special attention to the latter. Penal suffering is avoidable, particularly if its ineffectiveness can be proven, and the prisoners’ standpoint deserves to be heard not because they have any special virtue and not because they alone live in a world of suffering.

A sociology of the underdog is justified because, and to the extent that, his suffering is less likely to be known and because – by the very reason of his being underdog – the extent and character of his suffering are likely to contain much that is avoidable. (Gouldner 1975, p. 37)

Similarly, Nils Christie often reminds us that all he wants to do is to reduce the amount of suffering in the world: “I have never known someone who wants to increase it” (personal communication). Christie may have been particularly fortunate in his encounters, but his views and those of other abolitionists sit comfortably with a variety of insights found in sociology, politics, and philosophy.

Problematic Acts

Are crimes exceptional events? Louk Hulsman’s reply to this rhetorical question takes the form of an excursus into the criminal justice system as a “special” set of procedures addressed to a “not so special” category of individuals. We are accustomed, he argues, to regarding the criminal justice system as a rational apparatus specifically devised to respond to crime and to control or neutralize its effects. We are also accustomed to interpreting crimes as exceptional events, “events which differ to an important extent from other events which are not defined as criminal” (Hulsman 1986, p. 63). In conventional perceptions, criminal conduct is at odds with the average conduct in that it deviates from the type of interactions supposedly established by the majority. Such deviation, statistically exceptional, is thus deemed to trigger the special responses offered by official institutions: special events justify the special nature of the reaction against them.

According to abolitionist analysis, conducts classified as criminal are only a small proportion of a variety of similar conducts which escape criminalization. On the one hand, therefore, only certain types of events are selected as specific, undeniable, self-evident, representatives of what we understand as crime. On the other hand, the events selected are brought together in a discreet category, as if they constituted a homogenous group of conducts. “Within the concept of criminality a broad range of situations are linked together. Most of these, however, have separate properties and no common denominator” (Hulsman 1986, p. 65). What do violence within the family and street violence have in common? Do shoplifting, drug selling, and armed robbery belong to the same rubric of behavior? What makes dangerous driving similar to fencing? And political violence to pollution? Neither the motivation of those involved nor the techniques required, let alone the consequences of those specific conducts, displays a precise set of common components. If we are led to analyze them by referring such conducts to a common logical and moral framework, it is because the framework we adopt is inspired by the criminal justice system: “All these events have in common is that the criminal justice system is authorised to take action against them” (Hulsman 1986, p. 65).

This is not denying that human interactions may cause considerable degrees of suffering to those involved: abolitionism would only question why some types of suffering mobilize the intervention of institutional agencies while others do not. Moreover, in an imaginary scale of personal hardship, the distress caused by some interactions of a criminal nature would not score particularly high when compared to those of a quotidian, apparently prosaic, nature. “Matrimonial difficulties, difficulties between parents and children, serious difficulties at work and housing problems will, as a rule, be experienced as more serious.” In brief, there is nothing that intrinsically distinguishes, for those directly involved, criminal events from a variety of other unpleasant events. Most episodes causing hardship are normally dealt with informally by the individuals affected, at times with the mediatory participation of people or groups belonging to the community in which such episodes occur. Many conducts that generate serious harm do not elicit responses from the criminal justice system, while those involved in problematic situations mostly attempt to find solutions within the context in which they arise: the family, the group of friends or neighbors, and the work place. All this means, Hulsman concludes, “that there is no ‘ontological reality’ of crime” (Hulsman 1986, p. 66). Some examples may provide support to this conclusion.

A murder occurs in a town inhabited by some 300,000 people, and the alleged murderer is a university lecturer. A few days earlier, the lecturer had delivered a public speech and no one in the audience noticed anything unusual in the speech and in the speaker. The event is incomprehensible and the investigators feel the necessity to entrust a team of psychiatrists with the explanation of the mystery. Let us now imagine another murder occurring 200 years before in a small town.

If we had lived in that small town at that time, we would probably have found it ridiculous to call in an expert of the mind to explain why the killer had killed. Ridiculous because we all knew why he killed. After all, we would not have been surprised, and we would have agreed among friends that this was exactly what we all might have expected all along, (Nils Christie, personal communication)

The difference between the experience and perception of the two murders resides in the nature and amount of information the residents share about one another. So many people live in a middle-sized modern town that it is impossible to know them all. In addition, life is organized in ways that only allow us to hold a superficial or segmented knowledge of other beings. We have a narrow basis for predicting behavior outside the specific group to which we belong.

Another example comes from the Norwegian valleys, where the traditional institutional figure of the lensmann is still operative. A local sheriff of sort, the lensmann performs a variety of civil tasks and his/her ability to function is dependent upon the support received by fellow citizens. The lensmann may direct auctions, help mothers get money from absent fathers, and deal with crime. When Christie interviewed one such institutional figure, he was told that there was no crime in the district. But during the course of the interview, several things happened that testified to the contrary.

The telephone rang, a lady had lost her purse: the lensmann asked his assistant to drive down to the close-by cafe´; the purse was found and brought back to the lady. So was the young man who was using the purse. He happened to be the lady’s son. A report came in on breaking and entering into a store of weapons. The lensmann jumped into his car, drove far up into the mountains in the direction of the store, met a car high up there, stopped the car, found Ole drunk as usual, with a carload of guns he had stolen just to irritate his farther. He brought Ole home and took the guns to a safer depot. What a cliff-hanger story lost for the massmedia! Helicopters and anti-terrorist police might have been engaged in the crime-hunt of the century. Now, it was Ole. An old story of misery and family quarrels. (Christie 1982, pp. 73–74)

These cases and the one following show that definitions of crime are based on “ignorance” or lack of familiarity with the events at hand.

A man administers some drugs to his wife and causes her death by suffocation. He then writes to the police, saying that he has committed murder and that he is going to drown himself. The letter reaches the police 2 days after the man’s suicide. The flat where the coupled lived is visited by the officers, who find the dead woman. She had Alzheimer’s and, before killing her, the man had looked after her with deep love. “To some this is a story of Romeo and Juliet. To others, it is one of plain murder” (Christie 2004, p. 1). From numerous stories and situations such as this, abolitionists derive the argument that crime is a shallow concept, too imprecise to allow the subtle distinctions and understandings we need. The alternative concept of “trouble” may be a better starting point, trouble being something which is widely experienced and simultaneously caused by people interacting. Moreover, trouble requires responses, solutions, lest it causes harm and suffering. “The danger is too hastily to define troubles as crime.” The next step is, therefore, to examine in detail which acts are beneficial and which harmful.

Then follows an analysis of these acts perceived as bad – a classificatory scheme with categories as irritation, unpleasantness, disgust, sin and then, but only as one among so many alternatives – crime. When crime is the last concept in the line, it is easier to raise the analytical question: What are the social conditions for acts to be designated as crimes? Crime does not exist. Only acts exist, acts often given different meanings within various social frameworks. (Christie 2004, pp. 2–3)

Let us take a final example of how social frameworks determine the meaning of acts. A man carrying a bag-load of beer cans arrives in a park. He starts drinking one can after the other, and because he acts “funny,” he attracts the attention of the children playing nearby who surround him and enjoy the show. Suddenly, the man goes behind a bush with the intention of relieving himself and the children, who are carried away by the entertaining situation, follow him. It is summer, and many people are enjoying the sun from their windows or balconies in two adjacent blocks of flats. Christie names the two buildings as, respectively, The House of Perfection and The House of Turbulence. The former was built by an efficient and reliable company, the tenants moved in smoothly, on the agreed day, and to their satisfaction they found everything they expected perfectly in place. The latter was built by a company that went bankrupt, causing delays and distress among buyers, who organized themselves with the aim of claiming some form of compensation. The inhabitants of The House of Turbulence, in other words, knew each other fairly well, had experienced some form of collective action, and identified some common understanding of their needs. Now, a situation in which a man relieving himself while surrounded by children lends itself to highly different interpretations. For the inhabitants of the House of Turbulence, the case was clear.

The man is Peter, son of Anna. He had an accident when he was little, behaves generally a bit strangely, but is as kind as the midsummer night is long. When he drinks too much, it is just to phone his family and someone comes to take him home. (Christie 2004, p. 5)

On the contrary, in The House of Perfection nobody knows Peter: he is just a man urinating in front of children. The police must be called, because this is a case of indecent exposure. In Christie’s analysis, the inhabitants of this house never had a chance to get to know each other, nor were they ever forced to establish forms of cooperation with their neighbors. In conclusion, a “limited amount of knowledge inside a social system opens the possibility of giving an act the meaning of crime.” (Christie 2004, p. 5).

Substantial Law

Moving on to the abolitionist analysis of the law, it is necessary to start from a general, conventional premise. Juridical equality may be described as everybody’s right to mobilize state institutions for the protection and safeguard of their wellbeing. In this perspective, it is, therefore, the right to mutual coercion. Disrespect for the liberty of others amounts to the denial of their freedom. The state intervenes to deny that denial and restore the initial situation. Coercion is therefore legitimate in that it denies an act which has denied the freedom of others. Abolitionists would retort that such arguments might only be suitable for societies in which equal access to the law is complemented with equal access to resources. Their critique of the law and the criminal justice system is addressed to the iniquitous societies in which we live, while critical responses are also provided to other key assumptions, namely, that the law addresses individual rather than collective actors, and that liability and non-liability can be scientifically assessed.

Institutional intervention into problematic situations aims to obliterate an ethics of shared responsibility for conduct while affirming an ethics of individual responsibility. In this way, institutions can establish their monopoly over the power to punish or pardon, namely, their right to destroy or “repair” the individual responsible. The weakening of any networks contesting this right, be they neighborhood, religious, political, or cultural aggregations of people claiming their own right to deal with problematic situations and responsibility, is crucial for that monopoly to be accomplished. When the official power to punish or pardon solidifies, penal sanctions as chief characteristics of the criminal law emerge.

It is only then that crime – as defined by the state itself – becomes possible. It is only then that the continuity of crime in some form becomes fundamental to the very existence of the state. And this form is determined by what the state chooses to sanction penally. (Kennedy 1976, p. 63)

The abolitionist stance, here, echoes some aspects of conflict theory. Conflict theorists propose that law in the books and law in action favor the interests of special groups, and that, therefore, rather than being concerned with the explanation of crime, theory should engage in explaining the function of criminal law (Vold 1958; Chambliss 1969, 1975; Turk 1969; Quinney 1974; Akers 1997). Similarly, abolitionists do not ask why some people commit crime, but rather why some acts are defined as criminal? As succinctly stated by Quinney (1970, p. 18): “criminal definitions describe behaviour that conflicts with the interests of the segments of society that have the power to shape public policy.” From another, though adjacent, perspective, the criminal law itself is described as devoid of rationality and replete with conflicting principles, as its central features derive from struggles taking place in previous epochs. Such features took shape amid social and political conflicts and, inevitably, bear the mark of previous historical events: “The central principles of the law are the site of struggle and contradiction.. . The fate of law as a rationalising enterprise is tied up with the nature of law as a social, historical force” (Norrie 1993, p. 9).

Elements of Marxist analysis are detectable in these formulations, and in general in all conceptions of law as expression of group conflicts. The law, according to Marx, allows states to deal with “social imperfections” as if they were “evil dispositions of the poor” rather than products of specific economic and political arrangements.

Marx, however, defines the law as the form in which the individuals of a certain ruling class assert their common interests.

Abolitionist analysis, however, develops some central tenets of conflict theory in an original manner. Where conflict theorists seem to limit themselves to the critique of the criminal justice system as an expression of antagonistic values and interests operating from above, abolitionists reappropriate the very notion of “conflict” and turn it into a critical tool to be utilized from below. Nils Christie (1977, p. 1), for instance, remarks that conflicts are hijacked by the criminal justice system and that criminology lends a helpful hand in the process: “conflicts have been taken away from the parties directly involved and thereby have either disappeared or become other people’s property.” Law specialists are not the only ones to “steal” conflicts; conflict theorists in criminology, in effect, do the same, though in a different fashion: they turn interpersonal conflicts into class conflicts, thus again taking them away from those directly involved.

Comparing two opposite scenes, an adjudication case in a small village in Tanzania and a case dealt with in a juvenile court in England, Christie provides the following description. In the former, the contending parties, a man and a woman, occupy the center of the judicial scene, they make their claims, while their respective friends and relatives take part without “taking over,” and the audience intervenes with questions, information, and jokes. In the latter, the predominance of professionals is visible, while the young defendant appears to be confused by those surrounding him, whose role he does not understand and who do not take any notice of him. “The truth is that, for the most part, the business of the criminal courts is dull, commonplace, ordinary and after a while downright tedious” (Christie 1977, p. 2).

Christie (1998, p. 19) provides two pictures of how rules are created. In the first, Moses descends from the mountains carrying the rules engraved in granite. “Moses was only a messenger, the people – the populus – were the receivers, controlled from far above.” The other picture sees a group of women gathering at the fountain, around the well, or along a river, who while fetching water exchange information and evaluations.

The point of departure of their conversation will often be concrete acts and situations. These are described, compared to similar occurrences in the past or somewhere else, and evaluated – right or wrong, beautiful or ugly, strong or weak. Slowly, some common understanding of the occurrences might emerge. This is a process whereby norms are created. It is a classical case of horizontal or equalitarian justice. (Christie 1998, p. 119)

The act whereby conflicts are hijacked by professionals entails a specific construction of reality hinging on an incident, narrowly defined in time and space, whereby the individual is separated from the context in which the action takes place. According to the abolitionist critique of legal professionalism, those who act, in this way, are isolated from the very incident involving them, from the environment in which it occurs, from their “friends, family, and the material substratum of their life world” (Hulsman 1991, p. 23). Also, they become separated from those people who, in that specific situation, feel victimized by certain acts. Hulsman focuses on the culture and the organizational make up that extrude people from their social context and artificially sets them against one another: “In this sense the cultural organisation of criminal justice creates ‘fictitious individuals’, and a ‘fictitious’ interaction between them” (Hulsman 1991). The core function of such an organization is the apportioning of blame, whereby events are assembled and sanctions catalogued on the basis of seriousness and gravity, respectively. A hierarchy is, therefore, postulated and patterns of acts and institutional responses to them are artificially established. Events, in their turn, are chosen among a limited range of conducts and interactions, namely, those which the criminal justice organization feels more comfortable in explaining and evaluating. “No comparison is made with events and behaviours outside that range.” Patterns and hierarchies are drawn in a universe which is far removed from the context in which events took place, so that what appears to be consistent within the criminal justice profession is experienced as inconsistent by those who constitute the objects of that profession. Hulsman remarks, in this respect, that “values and perceptions in society are not uniform.” And in this way he echoes conflict theorists such as Sellin (1939), who emphasizes “culture conflicts,” that is the differences between social groups, their aspirations and behavioral models, leading to acts defined as crime. But he adds that the “program” for blame allocation typifying the criminal justice system is a true copy of the doctrines of “the last judgment” and “purgatory” developed in certain varieties of Western Christian theology. The criminal justice system, in his view, maintains the features of “centrality and totalitarianism which belong to those theological doctrines. Naturally, those origins – this ‘old’ rationality – are hidden behind new words: ‘God’ is replaced by the ‘law’ and the consensus of the people” (Hulsman 1991, p. 24).

The notions of separateness and isolation, applied by abolitionism to the offender, the victim, and the problematic situation characterizing their interaction, are also mobilized by conflict theorists, when their analyses focus on the law as the realm of individualist philosophies and as the reflection of egoistic interest. Abolitionism enriches this approach with detailed descriptions of contexts and events, suggesting that these are subjected to a process of abstraction or outright obliteration. It is the very cultural organization of the criminal law that fosters this process, a process whose “frame of reference,” as Hulsman terms it, gives no room “for active participation and guidance for the parties involved.”

When the police operate within a criminal justice frame they tend not to be directed by the wishes and desires of the complainant, but by the requirements of the legal procedure which they are preparing. The complainant becomes a guide for their activities as “witness”. A witness is mainly a tool to bring legal proceedings to a successful end. In a comparable way the frame of court proceedings precludes – or makes it anyway specially difficult – for the victims to express freely their view on the situation or to enter in an interaction with the person who is standing as a supposed offender before the court. (Hulsman 1991, p. 24)

If classical conflict theory would mainly examine structures and agencies while omitting to look in any detail into their specific social composition, abolitionism devotes particular attention to such composition, particularly to the increasing separate specialization characterizing it. In brief, it is argued that each institutional agency develops its own criteria for action, its own ideology and culture which may lead it to collide with other agencies. Agencies are bureaucracies pursuing internal goals, such as expand, attenuate internal problems, monitor the wellbeing of their members, and ultimately ensure their own survival. “The process of bureaucratisation and professionalisation within the criminal justice system makes it a soulless machinery” (Hulsman 1982, pp. 56–57).

Limits To Pain

Among the most critical traits characterizing abolitionist theories and practices are those concerned with the nature, function, and philosophy of punishment. The infliction of punishment might be justified if it contributed to the maximization of happiness rather than the maximization of pain. Hence the need for any theorizing on punishment to consider its social consequences. Those who defend institutional coercion in the form of punishment may advocate rehabilitative treatment, may value its general or individual deterrent effect or its function of incapacitation aimed at prolific offenders. Abolitionists argue against such philosophies and their practical outcomes. In Mathiesen’s (1990) view, by contrast, prison has no defense whatsoever, particularly when inspired by penal retribution, whereby offenses are said to possess a “punishment value” that can be translated into a specific amount of “time.” Mathiesen argues that time is only measurable subjectively, and that the perception of its entity depends on one’s proximity to those serving a prison sentence.

After crossing almost four centuries, Mathiesen (1990, p. 33) identifies four major components in the rehabilitative ideology which have been remarkably constant through time. “Work, school, morality and discipline have run through the centuries as main pillars of thinking.” While the emphasis may constantly shift from one to the other component, rehabilitation itself, understood as “return to competence” is rarely achieved. Evidence of this failure is found by Mathiesen in a variety of studies grouped in three main areas. First, he refers to prison treatment studies, which yield largely uniform findings: the effects of treatment, in terms of preventing recidivism, and regardless of strategy or intensity, are generally poor. He then considers the notion of treatment in relation to the actual environment in which it is expected to be carried out. The organization of prison life, the authoritarian principles governing it, along with the bureaucratic arrangement stifling creative projects, provide a setting which is conducive to everything but treatment. Moreover, prisons are usually “overcrowded, run-down, and more or less dangerous places to those who inhabit them,” and if anything, they exacerbate the conducts of those they purport to treat (Mathiesen 1990, p. 41). Finally, he looks at a range of studies devoted to prison as a social organization or focused on prisoners’ communities, arguing that inmates become soon “prisonized,” that is they internalize the values and rules of a violent and coercive environment and adopt a culture which is impervious to change (Clemmer 1940). Such culture, which protects the inmates from the very setting that they inhabit, makes prison perform the function of a crime school, and prisoners more or less immune to treatment or readjustment programs.

Moving on to the discussion of deterrence as general prevention, Mathiesen (1990) suggests that the failure of this alleged function of imprisonment should prompt a dramatic reduction of the use of imprisonment as a whole. Research into the actual effectiveness of general prevention is so inconclusive that, when seen against the harmful outcomes of custodial punishment, it would be wise to limit the use of custody altogether, until its effectiveness is soundly proven. General deterrence consists of a message addressed to the general population, but it would appear that something goes horrendously wrong in the communicating process: “general prevention functions in relation to those who do not ‘need’ it. In relation to those who ‘need’ it, it does not function” (Mathiesen 1990, p. 69). It is for moral reasons, therefore, and due to lacking evidence of the actual working of general deterrence, that the use of imprisonment should be reduced to a minimum. There is, however, a supplementary argument that would strengthen Mathiesen’s reductionist stance, namely, that deterrence makes no difference between guilty and innocent individuals, in the sense that if non-offenders were punished its goal would still be achieved. By punishing people at random, irrespective of whether or not they have committed crimes, one may well assume that the general population is discouraged from violating the law. But, although acceptable from a utilitarian perspective, punishing the innocent would run counter the Kantian moral principle whereby individuals must not be treated as mere instruments for the achievement of a social good: all individuals should be treated as ends in themselves, in accord with their dignity and worth as persons.

Considering how ideas of general deterrence have increasingly replaced notions of treatment, Christie (1982, p. 29) notes that at least the latter “had a formally clear target: those receiving treatment.” The former, instead, chooses as a target a vague entity described as the general population, which is composed of people who, if deterred from one type of offense may resort to another type; people who, in the face of a punitive message launched in one country, may decide to move to another country; or finally, people who might find it hard to receive the punitive message altogether. “Conceptually, as well as empirically, ideas of general prevention or deterrence are thus more cumbersome to handle than ideas of treatment” (Christie 1982, p. 29).

As for individual deterrence, the belief that imprisonment amounts to a form of training for P criminal activities to come is persuasive enough, in the abolitionist view, to discard this specific official function of prison as inappropriate. Schools of crime teach resentment and hostility rather than respect for norms and others. In addition, it could be stressed that deterrent effects are notoriously difficult to establish, “since they involve counterfactuals: would these individuals have acted differently had the threat of criminal penalties been other than it was?” (Duff and Garland 1994, p. 25).

The history of punishment may be interpreted as an evolutionary process leading to distinct stages characterized by increasing leniency. Some commentators may describe the development occurring as one bringing a gradual decrease in pain, a progressive shift from brutality to sweetness. Of course, there is difference between gruesome public executions and incarceration, between suffocating reclusion and custody in a single room, with cold and hot water and a TV set. But does this indicate an objective reduction of the pain caused by imprisonment?

I just do not know. Each form would have to be evaluated according to its own time, by those receiving the pain, in the framework of their usual life and other people’s life, and in the light of what they saw as their sins. I do not see how a scale could be established. (Christie 1982, p. 9)

Law texts establish when punishments have to be inflicted, while judges decide how long they should last; neither examines their effects on bodies and minds, the suffering produced, how it feels. The belief in slow progressive humanization accounts for the lack of this type of information (Hulsman 1986).

Criticizing the humanization thesis, Hulsman (1986) notes that the overall amount of punishment does not tend to decline, as the number of convicted people per 100,000 of population shows a strong cyclic movement. The trend of convictions, in many countries in the industrialized world, has in fact for some time moved upward. Hulsman finds the assessment of the qualitative aspects of punishment more difficult. It is true that the application of the death penalty has been greatly reduced in recent centuries, and in normal times has been abolished in many countries. The same can be said, he adds, of many forms of corporal punishment. It may also be true that some progress has been made in improving the regime in prison systems. He, nevertheless, suggests caution when judging qualitative amelioration and humanization. The amount of suffering incorporated in legal penalties cannot be measured on a scale of absolute values. “To a large extent it consists of the difference between the normal living situation of people and that which is created by the intervention of the criminal justice system.” Hulsman is alluding to the concept of less-eligibility whereby the conditions in prison must be worse than the worst social condition of people in liberty. Because the prison system “has always drawn its clientele mainly from the most disadvantaged sections of the population,” conditions in prison will reflect the lowest standard of living experienced by this social sector. Now, as “the living standards of those same sections have in Europe improved considerably in recent years,” one may presume that prison conditions have improved accordingly, but the reality is that “improvement inside prisons during the last 30 years do not appear to have kept pace.” The conclusion is that “if this supposition is correct, then the degree of suffering from the penal sanction has in a sense increased” (Hulsman 1986, pp. 64–65).

The “evolution” of pain, moreover, is alleged to have rendered physical punishment obsolete, which is far from reality. Prison still entails forms of corporal affliction: it degrades the body, it deprives of air and light, it imposes humiliating sanitary conditions, it causes diseases, and it produces sterile suffering.

Not all suffering is bad; some is beneficial, in that it makes our consciousness develop while opening up new existential paths, making us better humans and getting us closer to the others. Imprisonment is a type of suffering that does not create anything, that does not generate any meaning. (Hulsman 1982, p. 59)

There are, finally, problems caused by institutional intervention per se: custodial and non-custodial measures alike erect.

obstacles to the development of social solidarity and respect for differences that manifest themselves in “lived life”.. . Rather than alternatives to custody we should devise alternative approaches by which information is collected about the needs of those involved in problematic situations. (Hulsman 1982)

Intellectual Biographies

As remarked above, abolitionism does not possess one single theoretical or political source of inspiration, but a composite backdrop from which, wittingly or otherwise, it draws its arguments and proposals for action (Ruggiero 2010, 2011). The intellectual biography of Louk Hulsman, for example, should be related to some crucial passages in the Bible where mercy is advocated while judgment and retribution are rejected. The Gospels of Mark, Luke, and Paul seem to provide an apposite theological underpinning for Hulsman’s abolitionism, which can also be assimilated to Saint Francis’ ecumenism and his view that thieves are not those who steal, but those who do not give enough to the needy. Radical theology or the theology of liberation also provide significant sources of inspiration. With Bakunin’s anarchism, Hulsman shares the belief that the realization of freedom requires that political action be conducted religiously. In some pages of Marx, Engels, Tolstoy, and Hugo an echo is felt of Hulsman’s concepts of redemption of punishment, self-government, mercy, and pietas. Hulsman’s system of thought, in brief, is shown to display a high degree of syncretism.

An equal if not a higher degree of syncretism shows the intellectual trajectory of Thomas Mathiesen, whose materialist approach is punctuated by arguments for a pluralistic, interdisciplinary, sociology of law. The writings of Marx and Engels constitute an ideal background for an understanding of Mathiesen’s work, which on the other hand draws on a number of other theoretical sources. The focus on offenders and prisons, and on social movements traditionally excluded from orthodox notions of class struggle, makes Mathiesen’s stance an implicit critique of classical Marxism. What constitutes the originality of Mathiesen’s work is the coalescence of research, action, and theorizing that characterizes his entire career, as an academic as well as an activist. Action is inherent in the research method adopted, and those researched are the prime subjects involved in research as well as in action. His radical analysis, therefore, is a tool which constantly translates knowledge about conflict into collective praxis for those producing it.

In his work, Nils Christie stands in favor of simplicity and intelligibility. He says that when we write we should keep our favorite aunt in mind, like Kropotkin said that anarchist literature had to keep in mind the workers to whom it was addressed. Christie’s system of thought echoes anarchist theories of law and authority. His critique of legal professionalism is akin to libertarian arguments against the proliferation of laws, while his appreciation of conflict as a resource brings to mind the anarchist idea that problems within communities can only been resolved if those involved possess sufficient autonomous resources to do so. One of Christie’s arguments is that communities and groups, irrespective of their dimension, may find abolitionist experimentation possible only if the interactions within them are highly frequent and intense. In this sense, he expresses the purest of anarchist notions, namely, that a better social life is experienced when communities develop social feelings and, particularly, a collective sense of justice that grows until it becomes a habit.

Conclusion

On the nature and concept of crime abolitionism engages in a debate that our ancestors Plato, Aristotle, and Spinoza saw as the distinction between good and evil. Far from exhausted, such debate continues in an array of disciplines ranging from theology to psychology, from political philosophy to social theory. The abolitionist critique of the law contains some Kantian moral principles, in that existing law is seen as using people as an instrument, a chance to signal the strength of transcendental and worldly authority. Abolitionists hold the view that the law performs a transferral of vendetta from the sacred into the judicial system of the state, and that it is mainly addressed to scapegoats, chosen violators among many, who are at the same time “evil” and “sacred,” in that they reproduce social life through sacrifice.

In abolitionist analysis, issues such as the designation of what constitutes crime, the intervention of the law, and the infliction of penalties that take place in institutional settings, which are distant from the situations, are addressed. Within such settings, punishment is the outcome of a cognitive process whereby the institutions make sense of events and claim that their response is based on the knowledge of such events. Abolitionists, instead, claim that knowledge is mainly achieved within precise contexts in which problematic situations arise, and it is for those involved to “repair” such situations through the development of restorative collective capabilities.

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