Discourses on Violence and Punishment

Discourses on Violence
and Punishment

Probing the Extremes

Krešimir Petković

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Title: Discourses on violence and punishment : probing the extremes / Krešimir Petković.
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To Lena and Mina
My Daughters

For Making Harder

Writing It
 Contents

Tables ix
Acknowledgments xi
Introduction: Probing the Extremes 1

1 Death Penalty: Political Theory of Extreme Punishment 49

2 A History of Violence: Changing Conceptions of
Punishment in Time and Some Attempts to Explain Them 111
3 Comparative Politics of Punishment: Stories from the Penal
Peripheries 169
4 Punishment and Power: If Power Punishes, Does Absolute
Power Punish Absolutely? 233
5 Punishment and the Sacred: How Do Great Religions
Punish? 299
6 Punishment and Fiction: Images of Violence in Literature
and Film 351
7 Criminology: Politics in the Science of Crime 403
8 Dismantling Sorrow 455

Bibliography 543
Index 579
About the Author 597

vii
 Tables

Table 0.1 Discourses on violence and punishment: Areas of applica-

tion and overview of elements
Table 1.1 Discourses on death penalty: Politics, art, and biopolitics
Table 2.1 Discourses on historical change in (violence and) punish-
ment
Table 3.1 Comparative discourses on punishment (and some violence)
Table 4.1 Discourses on punishment and power: Foucauldian perspec-
tive developed
Table 5.1 Elementary frames for penal policy of the sacred texts
Table 6.1 Discourses of violence and punishment in fiction: Political
schematization of fictional ontologies for punishment
Table 7.1 Ontology and politics of criminological discourses with two
meta-frameworks for analysis
Table 8.1 Types of discourse explored in chapters with examples

ix
 Acknowledgments

The former version of chapter 5, “Punishment and the Sacred: How Do

Great Religions Punish?” appeared in the journal Hrvatski ljetopis za kaz-
neno pravo i praksu (Croatian Annals of Penal Law and Practice), vol. 19, no. 1
(2012), pp. 209–253, under the title “Kako kažnjavaju velike religije? Pri-
log čitanju kaznene politike svetih tekstova” (How Do Great Religions
Punish? A Contribution to the Reading of Penal Policy in Sacred Texts).
The initial version of chapter 6, “Punishment and Fiction: Images of Vio-
lence in Literature and Film,” appeared in the journal Anali Hrvatskog
politološkog društva (Annals of the Croatian Political Science Association), no.
9 (2012), pp. 111–141, under the title “Preventive Political Morality and
Ontology of Evil.” Both chapters are significantly revised and expanded.
I am grateful to the journals’ editors, Davor Krapac and Enes Kulenović,
for allowing me to reuse the published material for the purposes of this
book. A few bits and pieces of the ideas and the material from these texts
are also scattered around the book.
For almost four years now, I have been teaching a course at the Facul-
ty of Political Sciences in Zagreb, entitled State and Violence: An Intro-
duction to the Study of Penal Policy. Since this book partly grew from my
lectures and interaction with the students, I would like to thank all the
students who attended the course in the academic years 2012–2013,
2013–2014, 2014–2015, and 2015–2016. I hope I made some of them think
about the matters discussed in this book, and some of them certainly
made me think about the issues within these pages; even if it is not
endemic to the academic process, but to human life itself, encouraging
someone’s thinking is probably the very “soul” of teaching in higher
education. I would also like to take the opportunity and thank the Faculty
of Political Sciences; it is a small institution in a small country that never-
theless enabled me to work and grow academically. Another thanks goes
to my family. It may sound strange when a family is addressed imper-
sonally, as an institution. Family is a micro-community, one of those
basic pillars of wider communitarian projects such as nations and states.
It is also a place where, according to the words of Miroslav Krleža—a
great Croatian writer from the twentieth century who unfortunately did
not receive significant international attention—it often stinks but it is
warm, unlike solitude, which is usually cold. Being warm consumes time
but also enables one to write.

xi
xii Acknowledgments

Finally, although speculations on the causes of violence and reasons

for punishment roam freely within this book, across structures, agencies,
and anecdotes of various sorts, the usual courteous disclaimer applies:
the author is solely responsible for the faults and shortages of the work.
Even if he cannot defend that statement theoretically, he still sincerely
means it.

***

I wrote the above lines about a year ago in Zagreb. They were dated on
All Hallows. Beyond the fortuity of dating, it was more of a private geeky
homage to all the dead authors cited than a phrasal nod of pious creeping
conservatism, probably coming as natural in my running thirties. I com-
pleted the manuscript in spring 2016. As time went by and as I waited
uneasily for the review process to be completed, I jotted down even some
more passages on violence and punishment. As things turned pumpkin
orange in New York and the same holiday approaches in 2016, along
with the heat of an Indian summer and the mosquitoes of the East River, I
have managed to cut down the manuscript to the maximum size allowed
by the publisher. I threw out most of the funny footnotes and trimmed
the main text, ejecting a plethora of skeptical, ironic, contextual, and ex-
planatory bits and pieces. Hopefully, it was for the better, at least for
most of the readers. My further thanks go to the publishing house for the
very generous space they have entrusted to me and to the fair reviewing
eyes whose combination of careful enthusiasm and critical scrutiny kept
me going in the effort of censoring my garrulousness. At the very end, I
extend my initial parsimonious thanks of a one-man show dealing with a
hard subject surrounded by familial heats and odors in abstracto to my
wife, who invented a home away from home, and to my academic hosts
at the New School for Social Research, traditionally friendly to European
émigré scholars.
The rest is for the siblings playing and crying, coughing and laughing.
Krešimir Petković
Long Island City, New York, October 2016
 Introduction
Probing the Extremes

This book brings together different accounts of violence and punishment.

By doing so, it deals with two things: discourses and ontologies. The
former means that it discusses various representations of violence and
punishment, and the latter that it is interested in how these discourses—
the semantic modes of political interpretation of the world—depict and
understand structures and entities that have to do with violence and
punishment. For example, various discourses have different, often nu-
anced answers to seemingly simple questions. Is society (politics, econo-
my) or an individual person responsible for a violent act? Can society
and/or individuals be changed? When, where, how, and why should
individuals be punished or treated in some other, more enlightened way
such as an attempt at rehabilitation or resocialization? Ultimately, there is
no consensus even on the question of what is violence, when it should be
called crime, and on what occasions it can be deemed legitimate. Method-
ologically, although the book deals with discourses, it does not employ
formalized or in any way technical discourse analysis. Instead, in order to
be accessible, it treats the matter within the frame of an informed critical
reflection on the subject, which should make it intelligible to wider array
of scholars and to a general audience. The idea behind this approach is
that important things about a discourse can be said in a rather simple
manner without losing academic seriousness.
The driving maxim of the book can be found in a saying by a re-
nowned Norwegian criminologist, Nils Christie. He wrote that “our
criminal policies influence our images of man: how he is, how he ought to
be.” He also added, however, that “our images of man—brought to us
from other sources—do also set standards for criminal policies” (Christie
1986, 105). The point is: in order to understand and think normatively
about responses to violence—that is, to think intelligently about public
policies that deal with violence—one must think deeply, but also widely.
Answers should be sought in various contexts if one does not want to fall
into the trap of narrow framing of the problems of penal policy making.
The book thus investigated a wide terrain of political theory, political
science, history, criminology, religion, and fiction, exposing various per-
spectives on violence and punishment. Diverse disciplinary foci are

1
2 Introduction

paired with a review of ideas and settings from history and comparative
politics that concern violence and punishment.
The titular concept that brings these various fields and perspectives
together is “to probe the extremes.” The idea is to examine what the
unusual and usually unexplored, or not compared, places say to us on
violent deeds and punishment. After the key concepts and the approach
are further explained in this introduction with the help of some illustra-
tive examples, the book starts “head on”—with a short treatise on the
extreme response of the state to violence, told in the genre of political
theory and summarized in the question that was interesting to classics
such as Hobbes, Beccaria, or Kant: is capital punishment by the state
legitimate? The following two chapters expound historical and contem-
porary comparative extremes, such as theatrical executions by multifari-
ous means, imprisonment as ghetto, democide as class punishment, the
concentration camps, where punishment was shaped by excesses of pow-
er, psychology and ideology, or public indoctrinations in the style of
Cultural Revolution in China. These are understood as crucial (and often
gruesome) experiments in the sphere of real events that bring forward
intriguing cases, useful to think about punishments, and penal policies.
The fourth chapter revolves around Lord Acton’s well-known saying on
the corrupting effect of political power. It discusses ideas that bring to-
gether power and punishment, with special focus on the, in my opinion,
valuable work of Michel Foucault, who offered innovative ideas on both
subjects.
The fifth chapter brings punishment within the perspective offered by
the world religions—Buddhism, Christianity, and Islam—treating sacred
texts mostly as a source of ideas on punishment within a religious com-
munity, trying to strip them nude to their ontologies of subject and core
preferences concerning punishment. The next chapter investigates ideas
on “the roots of evil” and adequate punishment in fiction. It looks at the
discourses that are not scientific or strictly factual but explores the subject
in the sphere of the possible events offered by literature and film. The
question is, what do these discourses, aesthetically impressive and often
interpretively challenging, say on the problem of violence and punish-
ment? Before the very end, I bring the treatise closer to the ground by
probing various criminological discourses in the seventh chapter: the sci-
ence of crime shifts with the whims of history and politics; its epistemic
status is contested, it is arguably political, and it thus can be analyzed
from the perspective of political science, as a political discourse of order,
conflict, and violence. The idea of the final chapter is to check the most
extreme cases involving cruelty, seemingly senseless violence, and severe
pain that usually provoke emotional and moral revulsion “straight from
the gut.”
The book’s epistemological strategy, intertwined with the dramaturgy
of its exposition, is one of initial skeptical probing that wants to see how
 Discourses on Violence and Punishment 3

things work in extreme, curious, or obscure venues, and offers some

exploratory ideas about it. In terms of chess, by going wide it inevitably
offers more intuitive or speculative lines in interpretation instead of a
precise calculation of alternatives that are to be left for particular studies.
Empirically, it is a world of historical and contemporary, real and fiction-
al anecdotes, viewed from various discursive angles; it is a combination
of midlevel insights, snapshots, aphorisms, and curious sideways
glances. A skeptical approach does not mean an exercise in classical Pyr-
rhonism of suspension of judgment, or an adoption of a frog’s-eye view
that Ernst Bloch attributed to positivism. It rather means a line of inquiry
that, in its broad explorations, is not too quick to reach simple generalities
or force coherence on the material, and that takes some time to enjoy in
the contradictory and extreme examples, following George Steiner’s pro-
fession of a phenomenological awe before the diversity of the world, that
is both simple and profound. (That erudite author allegedly reached that
posture already as a six-year-old, gazing at the dactylic hexameter of
Homeric verse.) If I should then choose an ideal in a historical boutique of
grand epistemological role models and blueprints, I would lean not to a
grandiose and overly tidy Hegelian system but to a barrage of Nietzs-
chean disparate aphorisms or reflective entries in the style of later Witt-
genstein’s notebooks on philosophical problems, applied to the more pro-
fane and brutal world of the politics of violence and punishment. Sche-
matic tables, one in each chapter, offer minimalistic summaries of these
sometimes uncanny experiments; and finally, with all the “lines” filled, a
new perspective on the old problem in the “column” of the crossword
puzzle should emerge in the last chapter dealing with the “ultimate”
sense of the things presented.
The rest of the introduction offers a few stories that illustrate the prob-
lems that I find interesting within the framework of this approach. It also
explains and illustrates some key concepts in order to make the matter of
the book more intelligible. Discourses and ontologies, with which I deal
right away, are the boring ones. The ones that follow belong to the subject
matter and are probably more interesting: evil, violence, punishment,
and penal policy.
The first concept is present in the title, which is intentionally ambigu-
ous: discourse, in a historical and contemporary French usage, can sim-
ply mean speech or treatise (e.g., de Gaulle’s, Descartes’s or Rousseau’s
“discourses”), which is a set of oral or written statements about some-
thing; in contemporary academia, it is more often used as an over-
stretched concept vaguely referring to the political ways of framing
things in language as suggested in the introductory definition. It goes
both ways in this book: it is a treatise on violence and punishment (what
is, and why it is, in the field of violence and punishment), and an analysis
of various discourses on violence and punishment (what people say
about violence and punishment, and why). There is specific methodologi-
4 Introduction

cal genre in social science called discourse analysis that I want to distance
myself from, not generally or because of possible ideological reasons, but
exclusively for the pragmatic purposes of the presentation in this book.
Professional discourse analysis tends to be formalistic: it offers precise
blueprints for analysis of tropes, syntax, and the other formal elements
into which ideology can inscribe itself—discourse and ideology are some-
times opposed as contesting concepts but often they work together com-
fortably—and then places the analysis of text within the context of com-
municative events, and into the wider context of societal system and its
discourse reproductions.
My idea, however, is neither to follow a precise blueprint in an analy-
sis of conversations and written documents, formally extracting (the ele-
ments of) discourses from them, nor to enter into a straightjacket of spe-
cific theoretical concepts or methodological orientations. In other words,
the concept of discourse might not completely melt like a surrealist
watch, but I do not use it very firmly either. It simply points how there
were, and there are different accounts, not necessarily competing but
complementary, that spread as they speak, constructing layers of mean-
ing around a theme—that is the original etymology of a word discourse:
a Latin verb discurrere, with an old Indo-European root kers, means some-
thing that spreads, moves, runs, flows, and circulates (currere) in various,
perhaps opposing (dis-) directions (White 1985, 3; 1990, 105)—and that
make sense of the world. A discourse thus forefronts some things and
diminishes some others, employs specific figures of explanation, legiti-
mates some relations and delegitimizes some other, implicitly or explicit-
ly points to a general solution of a problem, or offers a specific blueprint.
Discourse is here as a signpost of general orientation that pays attention
to various strikingly, amusingly, grotesquely, and sometimes disquiet-
ingly different ways of speaking about human beings, society, and things
that convey meaning, have political implications, and constitute worlds
of sense; that are often produced or supported by some political appara-
tuses, institutions, and social groups; and as such are worthy of attention,
since they may not be only secondary and superficial. Thus we might
speak of a conservative, liberal, or socialist discourse on punishment,
Buddhist or Christian discourse on punishment or, as we shall see in the
last chapter, even a self-legitimizing discourse of violent agents who jus-
tify their violent actions. That is why and how I find the concept of
discourse useful.
I thus do not usually forefront metaphors, synecdoches, lexicaliza-
tions, or syntactic ordering that changes meaning—that is, I do not speak
explicitly in the genre of discourse analysis. Similarly, I do not often
conspicuously cry out the word “ontology,” which can be associated with
the previously sketched idea of discourse. Ontology is an old and vener-
able philosophical discipline dealing with existence and reality. It is the
philosophers, pre-Socratics such as Parmenides or Anaxagoras, or medie-
 Discourses on Violence and Punishment 5

val scholastics such as Avicenna, asking the old question of “What is

there in the world?” The metalanguage of social sciences accepted it, or at
least some epistemological orientations employ the lighter version of the
concept. The idea is that one can, in the theory of science, distinguish the
ways of approaching one’s subject through various procedures and re-
search methods (methodology); ways of justifying scientific propositions
as valid (epistemology)—they could, for example, be more contextual,
particular, and ethnographic, or more abstract, universal, and nomotheti-
cal (lawlike); and the postulates about entities in the world that are ob-
jects of these theories (ontology). Similarly to a creationist God, who gen-
erously populated the world with various creatures, “every thing that
creepeth upon the earth after his kind” (Gen. 1:25), in Marxism, or at least
some of its orthodox versions, the social world is populated by classes,
while in the world of neoclassical economics and rational choice the au-
thors speak of (utility-maximizing) rational individuals or implicitly base
their theories on such entities. A point that I want to forefront with the
introduction of this concept is that, within various discourses, these
building blocks of violence and punishment are not the same and do not
have the same normative consequences. As we see in one of the following
sections of the introduction, the theories of violence sometimes point to
violent agents and sometimes to violent structures—namely, to systems
that produce subjective “agency” on the individual level that, for that
reason, has no causal primacy and, as a symptom, shares no political
blame.

LA PIERRE AUX TROIS CROQUIS

Pierre-Auguste Renoir (1841–1919) was a French impressionist painter.

An Internet site selling fine art describes his La pierre aux trois croquis
(“The Stone with Three Sketches”), a lithograph made “circa 1904,” with
the following words: “A warm and loving depiction of a group of three
women, the delicate soft appearance of these portraits evokes a sense of
the romanticism and sensitivity put forth by Renoir in this piece” (Mas-
terworks Fine Art n.d.). I offer three sketches, a bit similar to Renoir’s
women. One is bigger, two smaller in the exposition; two are micro-social
and one is macro-political. Yet, all three look in the same direction, al-
though devoid of romanticism; they look at the problem of violence and
punishment. They are not warm, loving, or delicate, and all three
sketches deal with a considerably heavy stone.
Let me first tell you a simple story about a boy in a little playground
with a sandbox, slide, merry-go-round, and some other usual equipment.
The story is at the same time banal and highly revealing. It was such for
me because, in the course of an illustrative micro-social interaction, it has
shown to me a paradox and suggested a solution to it. The question
6 Introduction

reads: how can someone be “evil” in the sense of a stubborn disposition

to do things that hurt others, and at the same time not evil, in the sense of
serious moral responsibility for one’s own actions? The answer reads:
when one gets a glimpse at the working of mechanisms that shape such a
person for a significant time, things that are outside of that person’s
control, one would probably agree that chances to act nicely were made
pretty slim early on. The disclaimer is, of course, that it is not a prophecy
about a concrete protagonist (who is anyway left anonymous). And, in
line with the earlier sketched approach, I do not claim that my “revela-
tion” is the one and only truth about the things at stake. It is simply food
for thought; I can well imagine completely different agents and mecha-
nisms at work leading to different conclusions about the causes of vio-
lence and the rationality of punishment. It is not necessarily a precise
portrait of a concrete case but rather a subjective croquis made after the
author took a glimpse at things and envisaged one of the possible rough
truths, a series of lines that tries to get some of the defining contours of
the situation right, in what ostensibly was a small drama of psychology,
violence, and punishment.
It all happens in the afternoon of late August 2014. I bring my elder
daughter to the playground, not far away from our flat in the center of
Zagreb. It is business as usual, a predictably boring bourgeois idyll at
first. Some kids are naughty, they throw sand at others. My own daugh-
ter, back then a few months short of four years of age, acts selfishly at
times. She stacks her toys on a pile to protect them from other kids and
makes histrionic performances when the place at the swing is already
taken. Nevertheless, parents are prompt in curbing physis—the natural
forces that seem to be at work in children’s behavior. The function of the
ritual is twofold: It educates the kids in cooperation and nonviolent com-
munication. At the same time, parents send a message of civic decency to
each other. If a child is aggressive, he or she is mildly admonished and
shown the right way. The toys are shared, and the lessons are learned. No
one obstructs the slide or stays on the swing too long. Instead of fighting
or solitude, the kids manage to play together. Like in Golding’s Lord of the
Flies, the grown-ups have their tea and everything is all right in the end.
At the playground, a preschool physiocracy is patiently turned into cul-
ture. There is neither violence nor punishment.
Yet this playground utopia of small transgressions and prompt peda-
gogic interventions is soon to be tainted. It is already dark out there as the
other kids slowly disappear with their parents. Suddenly, I am left with
my daughter alone in the playground. Then a dad and his son enter the
playground. The boy is perhaps already in early primary school, older
and stronger than my daughter. His dad is skinny and a bit rough look-
ing. After he grumbles about entering into the playground, he sits dis-
interestedly on the wooden bench and talks on the cell phone. The kid is
not particularly aggressive. He communicates decently from time to time.
 Discourses on Violence and Punishment 7

He proudly speaks his name, which I still remember. But he also strikes
me as somehow prematurely jaded and insensitive. If necessary, he
solves the problem by force, doing so without any agitation typical for
kids. For example, he just takes the toys that are not his and silently keeps
them in his hands. He is stronger than my daughter, so she gets the short
end of the stick when she tries to claim her property. I tell her not to get
upset. Although the toys are not his to grab, it is not nice to grab back
something from another’s hand. Moreover, entering into somewhat phil-
osophical domain, I try to explain to her that it is ultimately stupid to
fight over a cheap piece of plastic. He seeks attention and wants me to
play with them. “I am going to watch after you from safe distance,” I
respond ominously. Belatedly, I notice that the boy’s father has a bottle of
beer near him, a thing I did not see at first because I did not expect it in
such a situation.
The boy now runs to a merry-go-round. He doesn’t let my daughter
on it, and very quickly he turns around very fast. I ask him politely to let
her on board, while at the same time trying to keep her at safe distance.
He is finally willing to let her on board but he doesn’t stop the rotation.
Still turning around, he tries to grab her with his hand. Despite my ef-
forts, she finds herself caught up in the rotation. The carousel kicks her
down and ejects her from her shoes. She cries. I put her shoes on and
offer a short, insecure sermon to the kid: “You should be nicer,” “let little
girls play,” and “take care of them.” “There were more than enough
places on the merry-go-round for both of you.” However, his thus-far
disinterested father is now thundering like the Old Testament Almighty
Himself: he mentions birching and standing in the corner; the boy is
made to sit firmly on the bench. He cries and weeps but he is now per-
fectly still, like a trained puppy, in what seems as a well-rehearsed rou-
tine that is taking place before my eyes. He is on the one side, beer is on
the other, and the father is sitting between the kid and the bottle. The
thunder is still echoing: “She gave you her toys, and you did such a
horrible thing.” The daily sins are enumerated and birching is remen-
tioned, while the boy, desperately and a bit theatrically, cries on the
bench in the ritual of punishment. To add a touch of sociolinguistic stylis-
tics: father speaks in the dialect miles away from articulate speech and
bookish standards; it is more of a lingo that reminds me of the remnants
of shanties still scattered around the very center of the city. Thus we are
allowed to complete the picture in the genre of critical urban cartography
and sociological class analysis, equipped with the concepts of habitus
and cultural capital: a geography of underclass defying gentrification is
suggested, with its cultural forms more tolerant to violence as a means of
legitimate communication and upbringing.
And then I feel that I see the basics clearly: instead of timely engage-
ment and prevention, there is drinking and neglect. In the conversation
on the phone, that I “could not help overhearing,” the police are men-
8 Introduction

tioned frequently. When damage is done, enter belated eruption of pun-

ishment and stigmatization. It is a process in which the boy both becomes
insensitive and learns that he is bad. (How is it behind the doors, when
there are no spectators? I ask myself.) “I just wanted to play on the merry-
go-round,” my daughter tells me on the way home. Everything will be
forgotten tomorrow.
This is the first discourse: violence as attention seeking, as a lack of
empathy, and as an effect of accrued callousness. Neglect is altered with
episodes of stigmatizing punishment. In order to survive emotionally,
you will become bad, as in Zimbardo’s childhood episodes from the
Bronx. Violence becomes a learned routine. You’re bad now and you
deserve punishment. Speculating on a large, macro-sociological scale,
perhaps it is an intimation of class differences, a spark of proletarian
culture and way of life felt as a disturbance from the vantage point of the
thin-skinned, middle-class, and bourgeois habiti. On a small scale, more
generally but perhaps less sweepingly, we see someone who is violent,
inflicts pain without emotions, and who is brought into such a state
where punishment will seem to be logical and just. I have not seen natu-
ral evil but circles of violence and punishment reinforcing each other; it
was a picture of becoming bad instead of being bad. Violence was pro-
duced and subsequently legitimated by retributive discourse on punish-
ment. Developing an anesthetic addiction to alcohol in order to cope with
the small devil, incorrigible and vile, with outbursts of punishment as an
outlet for fatherly despair in daily confrontations with the real Damien
Thorn? A contingency of character and temperament? The chances for
the opposite scenario seemed slim, but to reiterate: the sketch is based on
a short observation and does not purport to empirical truth in the partic-
ular case.
Let us now take a brief look at something completely different in
terms of scale and intensity: a structure that is bigger, more brutal, and
lethal in its ultimate operations. We see pictures of a man thrown from a
several-story building and then finished off by stoning. This public neo-
defenestration, a contemporary version of the well-documented historical
style of execution that triggered the Thirty Years’ War in seventeenth-
century Europe, is performed on a person sentenced to death because of
alleged homosexual intercourse. In another scene, a convicted adulteress
suffers only the second part of the procedure. The rationale behind this
traditional form of torturous punishment is relatively simple: every stone
thrown by the hands of a collectively dispersed executioner brings both a
piece of symbolic condemnation of an illegal act and a concrete increment
of injury and pain, leading to death in the final reckoning. Or, an old man
is decapitated under charges for witchcraft—a category with unclear em-
pirical references for the lay Western observer, that perhaps has some-
thing to do with polytheism and traditional superstitions and, from the
vantage point of various schools of theological jurisprudence, has a prob-
 Discourses on Violence and Punishment 9

lematic status in the corpus of the holy law. These are not isolated inci-
dents brought to life by local enthusiasts of punishment but seemingly
paradigmatic examples of penal policy authorized by a wider political
formation. To this account, in a list that is not exhaustive, we can add
public crucifixions, beheadings of designated enemies of the regime,
mass executions of war prisoners, and legitimized sexual slavery moti-
vating the soldiers in their campaigns of violence.
Against the historical concentration camps, which mutated into exter-
mination factories, were in principle hidden, minimized, or denied in
public by their political authors, the punishments descibed above are no
secret. The regime boasts of their justness, not least in its “official gazette”
named after a toponym where apocalyptical events, presaged in the es-
chatology the regime espouses, are supposed to enfold. They might take
place at the very moment I am writing this sentence of the introduction,
in the early months of 2015. The exact name of the regime is less impor-
tant and perhaps still impossible to get right since, in lack of a consensus,
it changes depending on the position of the speaker, an enemy or a
friend: an overgrown terrorist group, illegitimate rogue state, a tempo-
rary sign of political chaos, or a moral monstrosity. A state with a more or
less particular geographic epithet: the Islamic State of Iran and Syria
(ISIS), the Islamic State of Iraq and the Levant (ISIL), or al-Dawla al-
Islamiya (fi) al-Iraq (wa) al-Sham (DAESH)—or, in the language of its
adherents, simply the Islamic State (IS)—renewed empire of a true relig-
ion, accumulating support throughout the world. A state by its name but
an empire by its political program, since empires have no fixed borders.
The self-proclaimed Islamic State—let’s call it that way, since for obvi-
ous reasons, it lacks international recognition within the existing system
of states—emerged as an effective political force that controls territory in
Iraq and Syria. It widely airs its executions, and the scenes rendered
earlier were easy to salvage from its magazine, the Dabiq, and the elec-
tronic pages of the buzzing world press since the punishments are not
public solely in the sense of the local square or field but virtually am-
plified as the communicative commodity for the global audience wired to
the Internet. The question is, how do we explain them? The technology of
dissemination might be new, but some of the explanation certainly be-
longs to an ancient religious discourse, as we shall see in chapter 5: pun-
ishments for adultery will measure up to the appropriate amount of
lashes in the Koran (24:2) or, in certain cases, the stones, as provided by
the prophetic tradition of the ahadith. Together with apostasy and homo-
sexuality—and some other transgressions, including the capacious cate-
gory of waging war against Allah and his Messenger, and the spreading
of mischief throughout the land (5:33)—these are designated as hudud,
crimes against God himself, the boundaries that are not to be crossed and
are explicitly coded by the Sharia, the Islamic law. Somewhat depending
on the version of the Islamic jurisprudence or the fiqh, traditionally ren-
10 Introduction

dered within one of the specific schools or the madhahib, they will bring
strict punishments such as flogging, stoning, hand cutting, or crucifixion.
And some other above-mentioned practices will, when necessary, find
legitimization within the ayat of the Holy Book and the authenticated
sayings or deeds by the Prophet and his successors. However, the phrase
“when necessary” is crucial; if we bracket Victor Hugo’s idealistic saying
that one can resist the power of armies but not the power of ideas, a
specific interpretation, harsh in its penal consequences, of an old and
long ago codified system can be implemented only if social and political
context allow it. In political places where Islam is the dominant religion,
penal policies differ widely in interpretation and practice. The fact that
someone wants to proclaim a fundamentalist discourse of punishment as
a binding rule for the community is not sufficient; the working of politi-
cal power seems to be a necessary condition to bring it to life. As Victor
Frankenstein, a “modern Prometheus” from Mary Shelley’s gothic novel,
needs some electricity to get his patchworked monster going, so every
fundamentalist regime needs power to enact an ideological program. In
the case of the self-proclaimed Islamic State, the working of power is
suggestively feudal and there is a context of war, resentment, and various
feuds and brutalities, convenient to support the brutality of punishment.
The ideas—the constitution of a specific fundamentalist interpretation of
Sharia law, sometimes associated with Wahhabism as a variant of Sunni
extremism—are blended with a specific type of power.
At the time of writing, the political structure, which might alter or
dissolve, can still be described in the following terms: the regime, in its
internal comprehension a successor of early Islamic empire, has a central
sovereign figure, a caliph. The caliph’s commands—the firmans—are is-
sued to his commanders, the emirs, political and military warlords who
have autonomy on the terrain as long as they are effective in managing
the population and implementing the policies from the center. It is, in a
nutshell, a militarized feudal order with a strong centralistic component.
It employs the elementary friend–foe distinction and eliminates its vari-
ous foes without compromise, be it rebellious Sunni Arab tribes, the
Shiites as religious archfoes collectively designated as apostates, the
Christians, the Yazidis, or any Kurds who do not adhere to Islam as
understood by the regime. This pronouncedly genocidal style of politics,
legitimized as a holy war, internally reaffirms the order by the means of
strict punishment, publicized as a warning to all the potential transgres-
sors and challengers. Without entering into the geopolitical intricacies of
the regime’s complex genealogy, the conundrums of Middle East politics,
and a vacuum of order that enabled the regime’s erection, the point is
that a specific interpretation of religion, used as an ideological means for
waging war and a strong penal platform, was facilitated by the structure
of power working in a specific context.
 Discourses on Violence and Punishment 11

The regime uses religion as a driving force for expansion. Its black and
white flag with the Prophet’s seal unambiguously symbolizes the politi-
cal and eschatological ambition of the caliphate. As for the internal impo-
sition of order, one of the Ayatollah Khomeini’s renowned sayings works
just fine as a penal maxim in a Sunni context: “If the punitive laws of
Islam were applied for only one year, all the devastating injustices would
be uprooted. Misdeeds must be punished by the law of retaliation: cut off
the hands of the thief; kill the murderer; flog the adulterous woman or
man” (Khomeini, quoted in Mackey 1987, 61). This ideational nexus is
then easily combined with various other ideological and psychological
layers of identity, chauvinism, and hatred. Unlike the first sketch, charac-
terized by a delicate simplicity of a classical myth, we are confronted
with a more complex penal machine in the second: violence and punish-
ment come with a power structure of war-making, with an unclear dis-
tinction of civil, military, and religious authority. By all means, like in
other historical situations, the complexities of the context are significant,
and omitted in a short sketch, crude and elliptical. For example, economy
of oil that flows like spice in David Lynch’s adaptation of Frank Herbert’s
Dune is there to get the political and ideological universe running. And
there is opposition and unrest, the secret filming of crucifixions, defying
zealous religious police and various regime agents who blur the distinc-
tion of judicial and extrajudicial in their imposition of order. And so on
for the context and contestations. However, in the narrower picture, it is
punishment as discourse and power: ideas than can live on the fuel of a
power structure—the one of a military–political machine with high his-
torical ambitions in the ideological level. The following ultimate sketch
compensates historical magnitude and complexity with the horror of a
singular event of violence ghoulishly emerging in public space.
In Petaling Jaya, a city near Kuala Lumpur, a baby is beaten because
she cries. Naturally, the more she is beaten, the more she cries. And then
she is beaten even more. The young mother is eighteen years old, and the
baby ten months old. The incident is filmed in spring of 2011. The hidden
camera footage floods the Internet a year later. Hear how one of the
numerous sites described the incident in “a duplicate article” because
“the first article had too many comments and reactions and it broke”:
Thousands of netizens are up in arms over a viral video clip that shows
a woman abusing a baby. In the shocking 4-minute long video, which
was shared more than 16,000 times on Facebook, the woman violently
hits the wailing baby girl with a pillow, pinches her arms and thighs
and kicks the crying child, who lies screaming on a mattress. The beat-
ings intensify when the baby refuses to remain quiet and cries louder,
crawling towards the woman. At one point, the woman throws her
mobile phone at the child. (NewsRescue 2012)
12 Introduction

The story continues with an immediate arrest of the violent mother who
“was charged and found guilty under the Child Act 2001 is now serving
an 18-month sentence.” On this and various other sites, the angry Inter-
nauts expectedly called for longer prison sentence and even for a general
policy of sterilization in similar cases; the mother was, among other epi-
thets, labeled as “the worst pathetic waste of space in this world” who,
consequently, “should be executed pronto.” In one of the bizarre twists of
the comparative politics of punishment, the lynching repertoire included
both the declarations of “harsh treatment” and “rough justice” in Malay-
sian prisons and the call to “bring that woman here to [A]merica and see
what happens then.” 1
It is a nauseous scene. The poor child ostensibly suffers, her cries
intensify, giving rise to more severe punishment she does not under-
stand. Arguably, she feels the pain and reacts naturally to it in the only
way she can, the one that should bring mother’s attention and care. But
the problem is exactly in the fact that her mother is the one doing the
punishing, venting her parental frustration in a way that breaches the
moral taboos of civilization. The outcome is an unintelligible and sense-
less punishment in the medieval style of the trials of young children or
even animals, such as pigs or donkeys, which were from time to time
executed. But it is still punishment, an infliction of pain having to do with
someone’s unwanted behavior by an authority of some sort—natural,
conventional, or both. Stories of young and for some reason unstable
parents acting in a highly irrational and violent manner toward their very
young children are not that rare, even if they are a small scandal from the
vantage point of evolutionary theory. In the end, Shaken Baby Syndrome
(SBS) is a recognized diagnosis; whether we choose to call it an Abusive
Head Trauma (AHT) or Non-Accidental Head Injury (NAHI) is of lesser
importance here. Exposed to the public space, the wider audience de-
mands cruel punishment for the incomprehensible act of cruelty distrib-
uted to someone small and weak. Like in Céline’s naturalistic depiction
of family violence, before the discursive tides have transfigured the sto-
ries of family violence into philiarchy horrors of children punishing their
helpless parents, those lacking natural power suffer the violence from
their stronger predecessors:
A hundred male and female drunks inhabit those bricks and feed the
echoes with their boasting quarrels and muddled eruptive oaths, espe-
cially after lunch on Saturday. That’s the intense moment in family life.
Shouts of defiance as the drinks pour down. Papa is brandishing a
chair, a sight worth seeing, like an axe, and Mama a log like a saber!
Heaven help the weak! It’s the kid who suffers. Anyone unable to
defend himself or fight back, children, dogs, and cats, is flattened
against the wall. (Céline 2006, 228–29)
 Discourses on Violence and Punishment 13

We thus finish with a croquis of a grotesque punishment, an infliction of

pain for being loud and small, or simply for being alive and demanding.
Punishment of a subject who is not aware, and then the punishment of
the punisher by the authorities and simultaneously by the wider virtual
community that cannot punish enough before trying to understand, at
least in the symbolic space of the social networks, a notorious exhaust
valve for verbal war campaigns and lynching parties. That is our third
discourse, stretching the limits of punishment and illustrating the prob-
lems of the book.
“The two smaller figures recede back into space, each with their heads
tilted in the same direction, as though all three are examining the same
thing out of our sight” (Masterworks Fine Art n.d.). In such a way contin-
ues our fine arts site, describing Renoir’s lithograph. We can perhaps feel
that, notwithstanding all the differences, the sketches speak of the same
thing. Three croquis look in the same direction. Three croquis and one
stone, but what is the name of that stone, which is in the metaphor equiv-
alent with one of the painter’s names? These small and big dramas of
pain, violence, and punishment are still a bit fuzzy. Even if “the loose
quality of the imagery gives a sense of freshness and immediacy,” the
“intrigue and a mysterious air” still have to be resolved. In order for the
sketchy work of impressionism to become clearer, more concepts have to
be explained. The sketches could all speak of evil. They certainly, in
unison, speak of violence, and perhaps more controversially, they all
speak of punishment. The question of clarification is to be answered be-
fore investigating the specific themes in the chapters that follow: What do
these concepts mean within the context of this book? What does the au-
thor make of them? The next three sections explain them briefly.

EVIL UNDER THE SUN?

“No no no, no Hastings. It is romantic, yes. It is peaceful. The sun shines,

the sea, it is blue. But you forget, mon ami, that there is evil everywhere
under the sun.” These are the words uttered by Hercule Poirot, memor-
ably played by David Suchet, in the 2001 TV series adaptation of Agatha
Christie’s 1941 crime story Evil under the Sun, filmed on Burgh Island on
the coast of Devon. Poirot speaks to his naïve but helpful companion,
Captain Hastings, who cannot “think of murder in such a beautiful
place.” Is the famous fictional detective right? Can we talk about evil
under the sun, or should the concept of evil be discarded altogether?
I suppose many would, with a peace of mind, call the Malaysian
young lady punishing the baby with the pillow evil. Some would call the
dad from the first story evil—or maybe even the boy, depending on the
interpretation. And some would probably insist that the self-proclaimed
Islamic State is more than evil; in that particular case, evil is, presumably,
14 Introduction

but an old moralistic euphemism for an outrageous monstrosity. On the

other hand, some argue that the usage of the concept tends to be stupefy-
ing. James Dawes, the author of the book Evil Men, which builds philo-
sophical and introspective reflection around the excerpts from the inter-
views with the now elderly Japanese war criminals, frames things tacti-
cally (Dawes 2014a). Perhaps similarly to the boy from the first sketch,
but on a larger scale, these perpetrators of highly violent acts are both evil
and not, in the sense that they were “normal men—men who were not
born evil” but got “turned into monsters”; in that vein, Dawes acknowl-
edges that the Islamic State is evil but instead of its unproductive vilifica-
tion, he calls for a more prudent analytical work: “We can say they are
evil people doing evil things for evil ends. Or we can do the hard work of
understanding the context that made them, so that we can create a con-
text that unmakes them” (Dawes 2014b). For Dawes, the important ques-
tion is: “What social pressures and needs, what political and regional
vacuums, make it possible for a group like this to thrive?”
We might be silent about evil on tactical grounds, but we might also
try to explain it away. If one accepts the postulate that “in the long run,
evil needs to be explained too” (Baumeister 2001, 2), one can suspend the
feeling of horror and engage in a sober analysis of the factors that, in
various cases, work as necessary and sufficient conditions that deliver the
phenomena traditionally labeled as evil. Baumeister, who insists on more
reciprocal scenarios of shared responsibility—which, of course, can but
might not correspond to concrete empirical scenarios—is probably right:
“the myth of pure evil conceals the reciprocal causality of violence” and
“[b]y doing so, it probably increases the violence” (Baumeister 2001, 95).
Language of evil is not a neutral idiom to depict the phenomena that
would be just the same otherwise, put beneath some other label with the
same worldly consequences. Instead it is a specific discourse, a conceptu-
al scheme that often implies radical and often violent policy options. In
other words, it is a myth that hinders understanding and makes our
actions irrational.
The rational impulse is to agree with the two authors. It is not a
principle of Deism, a metaphor of a detached watchmaker discarding
miracles and other interventions, but a commonplace of modern episte-
mology, advocated by thinkers such as Hobbes or Montesquieu (if we
bracket the occasional lip service to the supernatural); a feeling of won-
der, especially of horror, disappears when we acquaint ourselves proper-
ly with a phenomenon that we do not understand or abhor. Evil is an
epistemological and practical hindrance, making us scared and aggres-
sive at the same time, while hiding from us the causes of the things at
stake. The chances to approach violence and infliction of suffering prop-
erly, as is the case with any other phenomenon, might grow with our
emotional detachment from it, paired with a more sophisticated analyti-
cal vocabulary, distant from simplistic worldviews. The miraculous rain-
 Discourses on Violence and Punishment 15

bows seen by Noah are today explained by scientists (see Hobbes 1651,
270/Bk 37). We might continue to develop these motives in the same vein;
a concept like evil seems to bring a theological burden that not everyone
is ready to accept. It often leads to a metaphysical schema of a perennial
struggle between Good and Evil. It is not shades of gray, if one can use
such a profanized metaphor, but a binary blueprint of an eternal struggle
between white and black. Evil comes with a Manichean setting and a
policy design to eradicate it without mercy. But even Nietzsche issued a
warning that can appear both as an empirical insight and, at least for
some, a normative suggestion; one becomes—or perhaps should (not)
become—a monster when fighting monsters. The tempting danger is the
one of the dark abyss staring back (as he poetized, in paragraph 146 of
Beyond Good and Evil). Killing of the killers, rape of the rapists, torture of
the torturers is something that even retributive spirits such as Kant tend
to omit in a civilized society, since retributivism, when uneasily paired
with a decent society, implies some respect for the human dignity of the
evil ones (Murphy 2007, 17). In conclusion, evil tempts us to cross that
line.
Should this elliptical construction make us throw evil overboard? Per-
haps, but that is not the agenda of this book. Since this is an analytical
piece on what is said and done, and not a pamphlet, I am neither going to
force the concept on the material nor am I going to censor it. I am writing
here about the infliction of pain, damage, and death, both as violence and
as punishment, which are sometimes called “doing bad things” or “evil
acts.” Although I may still be agnostic to the ultimate implications of
these terms within some of the portrayed discourses, speaking of evil
when discussing the subject of this study makes sense, at least metaphori-
cally. A short illustrative list, by no means exhaustive, might go a bit
further than the reason of the traditional common denominator for the
variety of condemned actions and phenomena. It would state that there
are really bad people out there and that neither religion nor conservative
politics are inherent in the usage of concept. Likewise, explaining evil
away as term associated with morals and choice might be harder than it
looks, whether that choice, to stick with Nietzsche, goes “beyond good
and evil” or is described in more traditional terms.
First, there are some figures, sometimes called sadistic, that finely fit
the description. In its purified, mythical form, evil men memorably ap-
pear in fiction. Historically, the Elizabethan drama has brought some
strong characters: Webster’s Flamineo from The White Devil, whose “life
was a black charnel”; Marlowe’s sadistically cruel Tamburlaine; or prob-
ably the most famous, Shakespeare’s Iago. If this turn to fiction seems as
a strange misplacement, the equally famous examples from reality are
not lacking; judging from the extensive coverage of the case, at least one
of the child killers of James Bulger can be called evil, or if that is a
controversial area because of age, one can pick historical portraits of the
16 Introduction

persons such as Amon Goeth, a concentration camp commander from the

Second World War, or some of the celebrated serial killers from recent
American history who stood out by their singular wickedness or sadistic
inventiveness. Who knows what structures, processes, or traumas made
them that way and caused them to do the things they did, but in their
completed state, they are called evil.
Second, one can speak of evil without religious or metaphysical impli-
cations, in the sense of something bad that is to be avoided. This does not
go with harsh policy advice but calls for a skeptical disposition of avoid-
ing pitfalls. Such is, for example, a relatively recent theoretical discussion
of public morality arguing that, instead of more ambitious utopian pro-
jects, politics in a pluralist society should work in the realm of preventive
political ethics in order to avoid various threats (Edyvane 2013). Further-
more, speaking of evil does not go in hand with an automatic subscrip-
tion to a specific ideological stance. The concept is used both on the Left
and on the Right, the traditional ideological coordinates that are, for lack
of better ones, be used to structure material in chapter 6. Speaking of the
Right, Kekes provides an example of a secular conservative position. Evil
is, as he claims in his book prospect, a fresh and thus revealing “initial
characterization” for a comprehensive and acclaimed study of evil that he
later accomplished (Kekes 2005), “most severe succinct condemnation
our moral vocabulary affords.” Kekes provides a simple and pretty ed-
ible definition: “Evil involves causing serious harm that lastingly pre-
vents normal human activities, as do, for instance, killing, torture, and
mutilation.” His idea is to attribute evil to “human actions that cause
serious harm and lack moral justification or excuse” while people or
motives are derivative in his opinion, and “institutions, societies, or cus-
toms are evil derivatively twice over” (Kekes n.d.).
On the part of the Left, Terry Eagleton’s book on evil (Eagleton 2010)
affirms the concept, pairing it with an ontology that is a bit different.
Unlike Kekes, Eagleton mostly analyzed fiction, notably the works of
William Golding, and came to a different conclusion on the roots of evil.
According to Eagleton, evil is an important concept not to be discarded.
We have to know what it is and how it comes about. In that sense,
Eagleton expectedly speaks of “authentic materialism,” making us aware
of the limitations of moral actions. Since moral actions depend on a “ma-
terial”—that is, socioeconomic—context, the roots of evil can be traced in
that context. Unlike the proverbial British people evoked by Eagleton, the
average man does not display virtue under pressure; similarly to Kekes,
human beings are in his opinion mixed, “morally hybrid” creatures. Ac-
cordingly, the most important cause of wickedness does not stem from
evil individuals, but from institutions, vested interests and “anonymous
processes” (see Eagleton 2010, 143, 147). Like small children, those who
are materially deprived and uneducated cannot really be evil. The society
is to blame for their evil deeds, so societal change is advised to combat
 Discourses on Violence and Punishment 17

evil rather than the harsh punishing of the individuals. It is a different

conclusion from the one offered by Kekes, who argues for punishment as
a deterrent; it is a different discourse and ontology, where institutions are
not a third-order derivative but a primary source of bad things. In the
two accounts, anthropology and society are juxtaposed as causal forces.
However, the same concept is kept. Reading the two is remindful of
experience of watching the upside-down conceptual church in Calgary, a
construction with the belfry stuck into the ground that still sticks to the
probably ironic name of Device to Root Out Evil.
Third, however encompassing and miniscule becomes the schema of
causation, dissolving evil into factors of biology and society, nature and
nurture, it does not seem to become absolute so that it can finally eradi-
cate the last tiny sparkle of choice and human agency. If evil implies
responsibility, and responsibility implies some kind of possibility to act
otherwise—that is, choice—then absence of responsibility in the scheme
of total causality, erasing autonomous human will out of existence
would, at least for some, make the term evil anachronistic and obsolete.
Perhaps this is right and threatens the whole building of morality and
law, with quite an impressive tradition of casuistry, but for now it seems
that agency is not theoretically or practically eradicated. And to the point
that it is put in question, it seems that various accounts offer more useful
and precise language than the one that was employed earlier, but they do
not introduce an ontological leap in the sense of science fiction finale of
Houellebecq’s The Elementary Particles, where the human species finds a
way to replicate itself without sexuality, due to scientific progress.
Finally, there is a thesis about the banality of evil, famously proposed
by Hannah Arendt, who reported for New Yorker from the 1961 Jerusalem
trial that resulted in the execution of the one of the top Nazi functionaries
responsible for the Holocaust. She memorably stated that “with the best
will in the world one cannot extract any diabolical or demonic profundity
from Eichmann” (Arendt 1963, 288). For Arendt, the key problem of po-
litical ethics, exemplified in Eichmann, was the lack of power of judg-
ment and practical reasoning (“sheer thoughtlessness”) of the banal bu-
reaucrats who lack devious qualities but still work very efficiently in the
realizations of evil projects. Whether this interpretation downplays the
sheer opportunism and lack of empathy within the framework of prag-
matic presentations of the self, circumventing some facts in order to
present an interesting argument, is again of lesser importance in this
context; in any possible interpretation of Eichmann’s actions, with
Arendt or contra her, “evil” is still there as a familiar historical shorthand
for various acts of cruelty and violence, such as mass murder or genocide.
It is simply one of the habitual ways to speak of the phenomena within
the ambit of this book. As Baumeister has it, in a discursive chain of terms
with similar meaning and a loose end, implying that these often inter-
changeable appellations are well guarded under the umbrella of evil:
18 Introduction

“Why, then, is there evil: crime, violence, oppression, cruelty, and the
rest?” (Baumeister 2001, 375).
If nothing else, evil thus comes out as a bit broad but quite common
name for bad things we would like to avoid and which are normatively
proscribed by morals and law, without the necessity of a metaphysical or
theological schema of a singular “dark” essence lurking behind.
Wherever it may spring from, whatever its roots or causes are, most of
the people professedly dislike these things and often call them “evil.”
Evil is easily substituted for violence or violent, aggressive, and harmful
behavior in the many cases discussed here, but it is also employed in
some of the interesting language games within these pages and finally
discussed within the more metaphysical frameworks in the concluding
chapter.

APORIAS OF VIOLENCE

One alternative is to omit the traditional moral burden brought in by evil

and to speak of violence. Certainly, the normative connotations of that
term have also been pointed out. Violence is generally understood as
something bad, or at least dangerous. 2 This is not surprising since vio-
lence implies some kind of conflict that usually makes someone’s posi-
tion worse: a conflict of power, conceived as a zero sum game between
individuals or groups; a conflict of interests in society, or even perspec-
tives and emotions in an individual; a conflict that is thus internal or
external; a conflict of human subject against nature, society, or others. In
other words, violence implies some state of affairs that is, contrary to
some volitions, acted upon with an attempt to change it by violent act.
Simple and practical definitions offered within academic production of
dictionaries and textbooks that are not laden with extensive critical reflec-
tion, for example, define violence as illegitimate force against order.
Along with the definitions of profane phenomena such as coprophagia
and graffiti, one can read that violence is simply “[t]hat force that is
employed against common right, against law, and against public proper-
ty” (Rush 2003, 361).
Violence, however, often appears outside of an explicit moral perspec-
tive, as an interesting and complex phenomenon to be scientifically ex-
plained, usually as a combination of factors that fall within the broad
categories of biological, psychological and social causes, whereas special
etiologies correspond to special phenomenological areas of violence such
as youth violence, sexual violence or child abuse (see Kandel Englander
2006). While some disciplines deal with violence on the level of its
causes—for example, political science, history and sociology when the
category of social is disambiguated to politics, history and society—the
others, such as philosophy and cultural studies, are more interested in
 Discourses on Violence and Punishment 19

the more elusive “meaning of violence” (Rejali 2009, 25). And, to compli-
cate things a bit more, when we speak of violence, both its technology, as
a means or a cause, and its meaning and symbolism, can be important or
merge into one. For instance, a Kalashnikov rifle is a reliable tool for
guerilla warfare and a recognizable freedom rifle, guillotine a means and
symbol of the revolutionary republican justice, and machete a dreadful
weapon of genocidal butchering. So, violence? This section gives con-
tours of this obviously faceted concept that underlies the discussions in
the following chapters of the book. At the close, it pays special attention
to the discussed distinction between subjective and structural violence.
A kid taking toys by force and his dad punishing him; a mom punish-
ing her baby; public executions by a group of fundamentalists on a strong
ideology and with serious imperial pretensions. Multifarious phenomena
that can nevertheless all be labeled as (acts, rituals or politics of) violence.
Here is how Zygmunt Bauman speaks of violence after the deadly attack
by the extremists on the redaction of Charlie Hebdo, a leftist satirical maga-
zine, which took place in Paris on 7 January 2015:
If the 11 September atrocity chimed in with the then tendency to “de-
personalise” political violence (following the pour ainsi dire “democrat-
isation” of violence by mass-media publicity that divided its attention
according to the quantity of its—mostly anonymous and incidental—
victims, and the volume of spilt blood), the 7th January barbarity
crowns the lengthy process of deregulation—indeed the “de-institu-
tionalisation,” individualization and privatisation of the human condi-
tion, as well as the perception of public affairs shifting away from the
management of established aggregated bodies to the sphere of individ-
ual “life politics.” And away from social to individual responsibility.
(Bauman 2015)
In the quoted passage, an act of highly visible political violence is sub-
jected to analytic scrutiny and evaluation from the vantage point of a
respected sociologist. The attack is not only designated as a “barbarity”
that could be performed by the atomized perpetrators working in a social
vacuum, it is also placed in the specific contexts of media performance
and of wider societal processes and political developments. We do not
need to accept the particular interpretation offered, a proposition about
the shift from collective political projects to life politics that affects vio-
lence as well. However, it elegantly highlights the prefigured complexity
of violence that once again urges some conceptual clarifications. If it is
usually not contested that violence, in the customary second part of the
definition dealing with the object of violence, implies some unwanted
harm or damage to someone or something, nor that the very term, as we
have noted, normally implies some kind of illegitimacy of that action,
then almost everything else concerning the first part of the definition—
the action and its causes—is controversial, in addition to the question of
20 Introduction

what types of harms should be included and discussed under the term
violence.
The discourses within this book mostly work with a narrow concept
of violence as it manifests itself but are far reaching when its causes are
concerned. This means that they deal mostly with physical violence of
some sort, speculating widely and differently on its whereabouts and, if
deemed necessary, its cures or solutions. As we discuss in more detail at
the end of this section, causes are usually the place where the disputes
between various discourses on violence appear. This combination of
wide causal speculation and normative roaming with a specific type of
violence opens the possibility for a rough operative definition: by vio-
lence, for the purposes of this book, I mean acts of physical force, usually
manifested as attacks on the body or constraints of its moving, directed at
an individual or a group, often appearing within some institutions or
structures, usually accompanied by some discourse preceding the act,
paralleling it or appearing post festum as a form of legitimization, and, in
the second tier by the discourses of explanation purporting to pinpoint its
causes and offer policy solutions, often implicitly delegitimizing or legiti-
mizing it. However lengthy, this definition already omits a lot.
First, there is, in contrast to the approach suggested by the narrow
definition, a tendency to conceptualize violence in much wider fashion.
As it is convincingly argued, there is not only physical violence but also
psychical, verbal, economic, and so on. 3 Second, types of violence can be
distinguished depending on the target or object. We speak of violence in
general but also of violence toward specific individuals and groups—
young, old, women, men, or various minorities, be they ethnic, religious,
sexual, or other. Additionally, we speak of violence against animals, the
planet, and the future generations. Various types and various intended or
inadvertent targets create a gigantic field of problematization of violence
calling for explanations and policies to curb it. 4 It is what political theo-
rist of democracy John Keane called “democratization of violence,” de-
noting not, in his words, the reversal of the historical bullets for ballots
principle (although I think one might envisage such a scenario) but an
advancement of the process of “denaturing of violence” (Keane 2010,
379). Keane refers to the tendency of its problematization, politicization
and tabooing of violence—as arguably a part of nature—by liberal de-
mocracies who seem to be sensitive toward it in internal matters, be it
family or military, and in the international “arena,” where at least some
states are not belligerent without reluctance.
All of these possibilities, opened by wide conceptualization of vio-
lence, can be important (and are important) but, at least for my purposes,
it does not makes sense to lump them together in a single treatise, since
phenomenology and causal stories about them might be quite different. I
chose to go with the more or less general account of violence that is
focused on the body, on pain inflicted to it or its constraining—that is,
 Discourses on Violence and Punishment 21

violence as an attack on physical integrity or freedom of movement as

elaborated above. It is the question of “interference with the bodies” of
others (Keane 2010, 381), which can be gruesomely specified with the aid
of a typology of personal somatic violence offered in Galtung’s classic
article, that has it spanning from crushing of the body to its evaporation
when the focus of violence is on the anatomy, or the denial of various
elements such as air or water when violence is focused on body’s
“physiology” (Galtung 1969, 176). Within this narrower focus, there are
various analytical strategies to make violence’s multifarious phenome-
nology (see Collins 2008, 1) more manageable. One can grade violence by
intensity from symbolic or light (via intermediate and more or less amen-
able) to seriously damaging and fatal. Or a typology of violence can be
constructed, depending on the criteria if victims or perpetrators are indi-
viduals or groups, with simple murder (one on one), spree killing (one on
many), lynching (many on one) or genocide (many on many) as paradig-
matic examples falling into respective four boxes (Hawdon 2014, 6–8).
Tidy theoretical matrices can structure the area of research, and make
pursuit for causes and solutions more ordered, but often typologies stand
closer to phenomenological fuzziness, without neat criteria for classifica-
tion. Such is, for example, Tilly’s scale of seven types of violence ranging
from individual aggression and brawls to coordinated destruction and
violent rituals, the latter empirically piling together public executions,
gang violence, lynching, and sport events (Tilly 2003, 14–16). An ap-
proach oriented toward historical investigations such as Tilly’s can also
give way to more theoretical and functionalist political science discourse,
where the state appears as a crucial actor for structuring the discussion
on violence that thus falls within categories of warfare, public order, and
state violence, depending on whether the state employs violence against
other states, to enforce order in society in the sense of legitimate monopo-
ly of force, or against its citizens (Krause 2009). The last-mentioned pos-
sibility gruesomely escalates in the operations against “one’s own” politi-
cal population warranting the name of democide—the killing of the people
(Rummel 2009).
These strategies are important and useful for some discussions, but
are not especially important for the general level of discussion offered
here. It does not necessarily focus on any of the taxonomic boxes men-
tioned earlier, in the sense of the fine-tuning offered by the theoretical
and empirical work of various sciences. Violence is here taken mostly on
a general level, as something old—and not so constant, according to some
accounts such as Pinker’s—that happens and is accounted for by various
discourses on different levels. From Dawkins’s The Selfish Gene digested
in the popular culture artifacts such as an episode of House MD with the
improbably polite and nonaggressive patient—“It must be disease, since
such a gene would not last long in a violent world”—through poetic
metaphysical recitals from the Greek tragedies, to grandiose historical
22 Introduction

epics such as Kurosawa’s Ran, one of his Shakespearean adaptations,

where chaotic carnage and suffering is in the end sanctioned with a say-
ing: “Don’t cry, it is how the world is made.” “Men prefer sorrow over
joy . . . suffering over peace”: instead of the workings of gods or genes,
our attention is brought to human responsibility by the great Japanese
director. Violence en general appears in different ruses, with opposing
ontological foundations and contrasting discursive takes.
Although analytic dissection may lead to interesting explanations of
specific types of violence, within this general framework the story varies
significantly and gets political overtones in the general discussion about
the causes of violence, where blame is shifted from the individual or
group of individuals as a prima facie obvious culprit to “the system”
which with its injustices and nonobvious operations spawned or allowed
violence to breed. It is the elusive terrain of the controversy on structural
violence that can be developed from the following statement: “Those
who ‘abjure’ violence can do so only because others are committing vio-
lence on their behalf.” The sentence represents Orwell’s critique of naïve
pacifism from his 1945 Notes on Nationalism, and he finds it “grossly obvi-
ous if one’s emotions do not happen to be involved.” This theme, contin-
uing Orwell’s affirmation of some motives from Kipling’s Tommy—civil-
ization depends on violence but hypocritically condemns it—is the exact
place where the concept of structural violence appears in its essence,
pointing out that responsibility is not simple and isolated at the place
where the concrete deed is done. In the realm of political theory, perhaps
the most famous, it not initial, formulation of the same idea can be found
in the warning (and a self-fulfilling prophecy) long ago issued by Marx
that violence is a midwife of order, and that, when rights are equal, force
decides, which echoes later in Schmitt’s decisionistic theory of law.
The old idea received a conceptual elaboration by Johan Galtung in an
already cited piece that consequently parented a broad concept of vio-
lence from a parallel utopia of wide concept of peace, for example, in-
cluding “death of the disease that can be cured” as violence, since suffer-
ing could have been alleviated or eluded by action (Galtung 1969, 168).
Galtung saw “intended violence” as an easy catch, “the small fry” that
lets “the big fish loose”: “It corresponds to our ideas of what drama is,
and it is personal because there are persons committing the violence. It is
easily captured and expressed verbally since it has the same structure as
elementary sentences in (at least Indo-European) languages: subject-verb-
object, with both subject and object being persons” (Galtung 1969, 171).
In the realm of Continental political philosophy, this idea was recently
brought to extremes worth probing by Etienne Balibar, Althusser’s pupil,
and by Slavoj Žižek, world renowned Lacanian scholar and academic
entertainer. Balibar held Wellek lectures on the theme in the 1996 at the
University of California–Irvine, and more recently updated them in a
collection, Violence and Civility (Balibar 2010). Speaking from the position
 Discourses on Violence and Punishment 23

of the Left, Balibar’s problems were, first, the global economy, not only as
a running fact but as a legitimizing ideology, and second, ethnicities that
serve as reservoirs of collective identity producing conflict. The first in-
stance turns humans into things, superfluous and disposable at the pe-
ripheries of Wallersteinian world system, while the other one turns them
into a vilified Other, evil incarnate and demonic force that sooner or later
must be erased. Balibar’s first idea, that economy makes scum of people,
can be seen as an uncredited echo of Galtung, and includes the so-called
natural catastrophes, together with demographic explosions and pan-
demics, paired with child slavery and trafficking in organs grown by the
poor to be bought by the rich. The second stems from the fetishist “We,”
perhaps a reaction to the insecurities of the first, and thus can also be
attributed to structural violence of global production and consumption.
Balibar designated the first type of violence as ultraobjective and the
second one as ultrasubjective. His theoretical problem was Hegel’s
underscoring of violence that cannot be resolved by dialectics and super-
seded in an “immanent manner.” Balibar confessed that it is hard to solve
the problem on the level of political action; the consequence is impotence
of political actors who either implicitly support violence by nonacting or
produce it by counterviolence without the ability to transcend it.
In a book simply called Violence, claiming to offer “six sideways reflec-
tions,” Slavoj Žižek, with a reference to Balibar (Žižek 2008a, 14), notably
revitalized the concept of structural violence, distinguishing between
subjective, objective, and symbolic violence. Facing the problem of politi-
cal action, Žižek seemed as perplexed as Balibar, managing to advocate
revolutionary violence and doing nothing at the same time. Apart from
the legitimization of Jacobin-like revolutionary violence with the help of
Benjamin’s concept of divine violence, which turned out to be the most
controversial part of the book, Žižek essentially employed the old trope:
he pitted the acts of subjective violence—individual, group, or regime
acts that are visible and easily condemned—against the objective or struc-
tural violence that is less visible but more destructive and dangerous in
the long run. In his account, the latter is the violence produced by capital-
ist systems of economic reproduction, which is unjustly overlooked and
less easily connected with the suffering and victimizations for which they
are responsible. Again on (uncredited) Galtung’s trail, this is partly so
because of language as a special structure in which violence is embodied,
making it less visible and harder to detect (Žižek 2008b).
When it is understood what does lead to explosions of subjective vio-
lence, as in Brecht’s riverbed metaphor to which we return to in the
penultimate chapter, such actions become understandable, perhaps even
politically desirable disruptions of the system. In Žižek we see Galtung’s
idea of structural violence specified and a reiteration of Balibar: regular
working of a capitalist system, where actors simply fulfill their systemic
roles, produces inequalities and brings catastrophes. If not quite coher-
24 Introduction

ent, Žižek is quite radical and that makes his discourse interesting in the
opening section. One of his solutions is again a reiteration, this time of an
old Leninist program, that is, an imposition of the political will and, if
necessary (and it is), an apotheosis of political violence. A violent river is
perhaps produced by the structure of the riverbed, but Žižek calls for the
more radical Brecht’s song, The Interrogation of the Good, where good peo-
ple of the system are rewarded with a “good wall,” a “good bullet from a
good gun,” and buried “with a good shovel in the good earth” (Žižek
2008a, 39). Not surprisingly, the argument has been critiqued as a usual
example of Žižek’s “lack of clarity,” namely, as a “conceptual obfusca-
tion” that “may lead to an overly broad and facile justification of revolu-
tionary violence as counter-violence to systemic violence” (van der Lin-
den 2012, 33), legitimizing both the revolutionary terror and the looting
by the deprived from the Brazilian favelas who, in an act of divine vio-
lence, strike the better standing class like the providential biblical locusts,
bringing retribution to avenge social injustices. Van der Linden’s issue is,
however, more with the revolutionary action than with systemic violence
as such, which is contested or variously treated within discourses on
violence and punishment. Particularly, Žižek has a problem with “cryp-
to-Bismarckian Leninist authoritarianism”; his political position was thus
stylized by Simon Critchley, who is prone to less dramatic actions in the
interstices of the liberal-democratic state, as he argued in a lengthy and
emotional piece of interpretation of Žižek (Critchley 2009).
It seems natural from the vantage point of social sciences, as well as in
the political discourses of the Left, to trace causes of violence in structural
settings, institutions, or collective phenomena—be it economy, culture,
politics, or society. On the other hand, in classical philosophical construc-
tions, other strands of social science operating within the framework of
methodological individualism and in the political Right, violence is often
be associated with concepts such as free will or responsibility, attributed
to individual interests or villainy. In attempts to explain violence, the
archaic umbrella concept of human nature even today is juxtaposed to
the system, or dissected and elaborated in more up-to-date analytical
languages operating, for illustration sake, with the concepts of brain
damage, levels of neurotransmitters, hormones, genetics, and mental ill-
ness (see Kandel Englander 2006, 63–96). These different discursive pres-
entations of violence are investigated throughout the book and I don’t
develop this here much further. The point of this section is that these
various vantage points, sometimes opposed, sometimes complementary,
indeed offer aporias—aporias of nonviolence appearing as violence from
another perspective, and vice versa, violence appearing as nonviolence
since it is a product or even a just reaction to violence. In concrete analy-
ses they can disappear. Dialectics aside, it means that their elements can
blend in the complex causal stories of violent behavior and responses to
it. But on the general level, it is easy to sympathize with Žižek’s conun-
 Discourses on Violence and Punishment 25

drums where, ultimately, nonaction against alleged violence appears

more violent than violent action against violence. Or, in another aporia,
we can substitute passivity with enterprise if we decide to buy any of this
as relevant for violence or otherwise. If Marx is right, staunch capitalists
are the most progressive revolutionaries, since the development of the
system with inherent contradictions will lead to its mature destruction
and the birth of new order when the historical times comes. 5 Perhaps
with less violence.
In any case, three disclaimers should bring this section to a close. The
portrayed theoretical tempests may sound farcical because of the lack of
any ostensible practical action stemming from them. Indeed, the impor-
tant point is that any analysis of violence, as an action and ultimately as
an observable and in principle measurable phenomenon, should pay due
respect both to the concrete manifestations of violence and to their links
to the wider systems or phenomena they are associated with. This is not
to advocate any specific typological work or theory or to abandon the
“general” approach loosely advocated for the purposes of this work, but
to keep a simple empirical orientation to facts. Let’s take a gruesome
example: the political science of the Holocaust. It starts from a simple
premise: “Mass killing is local. Large-scale violence is never the straight-
forward result of direct orders implemented by unquestioning automa-
tons, although individual killing actions might at times lean in this direc-
tion” (King 2012, 330). King’s point is that violence is complex in its
concrete manifestations; if one wants to grasp it precisely, one has to take
into account the combination of institutional rules and individuals’ ac-
tions, of the violent perpetrators, of those who authorized them, their
victims, bystanders, and so on: “Violence takes place on a specific piece
of real estate and at the hands of identifiable individuals who are embed-
ded in a web of power and influence with formal and informal institu-
tions” (King 2012, 330). In other words, not only are some discourses on
violence and punishment simply cynical or powerless utterances, their
free-floating ontologies being irrelevant here and now, but also their gen-
erality may be imprecise or downright false, not offering usable knowl-
edge of fine distinctions demanded in the theoretical work in social sci-
ences as Clifford Geertz advocated long ago, expounding the uneasy
relations between social theory and the ethnographic way of thick de-
scription. 6
The other two disclaimers have to do with miscellaneous exclusions.
The classical and most extreme violence, both in scale and intensity, is
usually associated with wars, accompanied by state of exception and
various actions of collective violence outside the battlefield. “War has
been and continues to be a ubiquitous feature of the human condition.
Virtually all nations were formed by war” (Kekes 2010, 202), and the
erection of order and campaigns of collective violence in state-making,
which can be described with the language of racketeering and organized
26 Introduction

crime (Tilly 1985), are close to the subject of this book. And, as we see in
the next section, warfare can be subsumed under the stretched concept of
punishment: war is seen as violent punitive action in some cases when, in
the eyes of the aggressors, the recalcitrant nations under attack are under-
stood as subjects to be punished. But this would stretch our probing too
far. Primeval Ares, the deity of aggressive war, is not the subject in this
book, nor is any portion of myriad of accounts of war campaigns and
violence in wars, offered in war films, war literature, sociology of war,
and political theories that range from pacifist ones abhorring the war to
the ones that, even if offered by timid spirits, affirm its role as functional
conflict, preventing the decadence of society. For example, classical nor-
mative justifications and explanatory attempts from Thucydides through
Kant, who claimed that “war can be useful to sustain the concept of
man’s progressive moral enhancement through history” (Rivas 2005,
320), to Clausewitz and so on, are not treated here. Although this is all
very interesting and it would not be out of order to discuss it within the
framework of discourses on violence and punishment, practical grounds
demand that a line should be drawn somewhere.
The last exclusion? “Rather than waging all out war, however, an
exploitative alien venture may have the means to harm or manipulate
humans with other means, such as a targeted virus or pathogen, which
would leave the earth’s ecosystems time to recover, and its mineral re-
sources intact” (Neal 2014, 74). At the risk of constraining the declared
realm of the possible, I also have to exclude such scenarios, mentioned by
Ronald Reagan in the 1980s and memorably employed in the comic book
Watchmen, still in the Cold War spirit, where the higher treat is speculat-
ed as a force to unite traditionally querulous humanity. Armageddons,
hostile encounters with, and for the good Humeans, empirically void but
imaginable threats are interesting, but I feel I should take the risk of
constraining the debate: alien threats and a quite specific type of war—
The War of the Worlds of Wells and Welles—are left out.

PUNISHMENT AS POLITICS

Punishment is the central concept of this treatise. It can overlap with evil;
a specific punishment as such (e.g., electric chair, for many) or applied in
a concrete situation (e.g., electrocution of a mentally disabled person, for
most), or even punishment in general (any infliction of pain and/or re-
striction of freedom, for some), can be called evil, similarly to the violent
acts it pretends to redeem, expiate, or correct. And it overlaps with vio-
lence since, as a specific type of violence, it implies that the use of force or
constraint that, usually if not logically, does not depend on the will of the
punished, and contradicts it. Some like to be tortured, some even torture
themselves; some like to be in prison, some don’t object on being fined,
 Discourses on Violence and Punishment 27

but most persons dislike it. 7 Punishment is thus the use of violence on
person or a group that inflicts some damage or restriction while at the
same time pertains on some idea of justice, preventive rectifying of oth-
ers—“[t]he instilling of terror in other men,” as it was bluntly put (Bec-
caria 1995, 40)—or correction, rehabilitation, and reintegration of the
punished, and implies political authorization to punish. 8 If the concept of
violence is made reasonably narrow, having to do with physical integrity
and freedom of movement as discussed in the previous section, the point
here is to make the concept of punishment as wide as possible to encom-
pass various practices that are understood as punishment and deemed
legitimate in various historical settings and probably continue to be so in
future settings. 9 The concept of punishment as violence pretending on
authorization has several important elements that can be singled out.
First, there is the immediate moment of inflicting pain or constraint on
someone. It is the general trait of violent deeds, sometimes understood as
evil. In an influential study on torture as a form of punishment, Elaine
Scarry offered a radical position on this matter that serves to illustrate
this point. She argues that pain fundamentally distorts structured subjec-
tivity and is a deeply private emotion since one doesn’t literally feel the
pain of the other: “To acknowledge the radical subjectivity of pain is to
acknowledge the simple and absolute incompatibility of pain and the
world” (Scarry 1987, 50). Prison may be a place of peace for the stoically
minded but for most it means pain through isolation, seriously threaten-
ing mental health, and often inducing suicide—as the Quakers in Phila-
delphia quickly learned with their system of separate confinement. There
are many functions of punishment—for example, utilitarian understand-
ing of punishment will speak of common good, reform, rehabilitation,
and resocialization of individual, patronizingly seeing both punishment
and the individual as a means of improvement of society—but its primor-
dial function was, at least prima facie, retribution, paired with the com-
mon revulsion to pain, constraint, damage, mutilation, and death. It was
more or less civilized revenge, as we shall see, and even if etymological
arguments are often artificial, suspicious, and spurious, this one is simple
and probably beyond question: the Latin poena from which the whole
penality, penance and punishment, is developed has Greek poine for retri-
bution and the payment of the blood money behind, and at the same time
lies in the root of French peine from which the English pain is derived. 10
The involvement of pain and retribution, as something that is not only
a historical fossil of practical penology, can be succinctly illustrated by
the two contemporary cases. In the first one, we see the mother of a raped
and strangled seven-year-old girl in Florida. The bank donated the house
of the perpetrator, sentenced to life in prison after pleading guilty, to the
trust established in the memory of the killed girl; the trust, presumably
operated by her mother, then donated the house to the fire department to
use it for training exercise. The mother threw the last torch in the house,
28 Introduction

which burned to the ground. She claimed that she is now “the big bad
wolf knocking on the door,” and newspapers wrote of her “cathartic
smile”: “Diena Thompson’s desire for revenge burned white hot, but she
didn’t break any laws when she finally got it” (Molinet 2015). The case
exemplifies a symbolic substitute for retribution as a means of catharsis,
while the ritual is placed within the bounds of state and with the help of
an organized community. The other example appears outside of the posi-
tive legal order: a lynching, ostensibly primitive and emotional, takes
place in Dimapur, Nagaland, in association with high-profile cases of
brutal rapes in India (Hanna 2015). Pictures show the frantic faces of the
mob as the body of a rapist, a sacrificial goat, swollen and red, showcas-
ing bruises, stained with dirt and blood, is filmed and photographed by
the omnipresent mobile phones with integrated cameras in a new gro-
tesque twist of panopticism of the people, literally an Argus with a thou-
sand eyes, in what is an ancient ritual of collective punishment. Rocks
were thrown at the police; the rapist—whether alleged or real is of lesser
importance here, as are the ethnic tensions that might be involved—
abducted and lynched, and his businesses were burnt. Punishment as
pain for pain. It is also punishment outside the state, a theme we quickly
expand.
The second defining element of punishment is that there is an instance
of authority—elitist, plebeian, or providential—claiming legitimacy for
its punitive actions. This punishing entity (for example, an authorized
individual or group) wants to set things right in some way concerning
the punished individual and/or the collective, a historical injustice to be
fixed or future state to be attained, and this demands some kind of dis-
cursive legitimization, ranging from rudimentary to sophisticated. This is
the key point to understand, and a controversial one, having to do with
open games of legitimacy, politics, and authority. It goes against the idea
that, in an elementary sociological sense, punishment necessary implies
an asymmetric and fixed relation of subordination that distinguishes it
from the simple violence of the underdog. 11 It also goes against an even
narrower understanding that sees punishment as a more formal adminis-
trative action, usually performed by the state’s bureaucratic agents in
accordance with a codified system of law. According to this understand-
ing, the death penalty by an electric chair after a trial is punishment, but
the aforementioned lynching by the mob is not; the latter is an illegiti-
mate outburst of violence. And that is perfectly fine as a moral and politi-
cal stance and as a dogma of penal law of the state as the political organ-
ization behind “the law of the land.” 12 But it makes the concept of pun-
ishment uninterestingly narrow and conceptually privileges certain per-
spectives on it. Once again, criminologist Nils Christie can be helpful to
us. He used the concept of the ownership of conflict within the realm of
punishment (Christie 1977). The state claims a monopoly of force and
demands to be the only legitimate authority that owns all the conflicts;
 Discourses on Violence and Punishment 29

unless tolerated as petty and left to social mores, contingencies of force,

and/or accidents of luck, they all have to be solved within its institutions,
in obeisance to the law, and by procedures developed and provided by
the state.
Historically, the genealogies of public judicial systems can demon-
strate that this was not always so, and how penal law of the state evolved
gradually (Foucault 1980, 4–7; Spierenburg 1984). Normatively, this can
be criticized as unwarranted growth of the state’s bureaucracy that takes
sway over social life, altering it and vitiating its regular transactions.
Although the experience of societal life, probably in any given society,
still shows that the monopoly of force is “the sheerest of fictions” (Simon
2007, 13) and that social relations on the micro-level do not correspond to
the consensual transactions between autonomous wills but to the numer-
ous small manipulations of psychology and the tactics of force, the hyper-
trophic involvement of the state penality can be criticized as a form of
“governing through crime” (Simon 2007), where the hunt for perpetra-
tors and assumption of the role of the victims in the field of penal policy
becomes a general norm of societal interaction. Jorge Luis Borges, a fa-
mous author of fantastic short stories, also wrote detective fiction with
Adolfo Bioy Casares. In the very last lines of The Thai An’s Long Search
(the last story in the ironical collection Six Problems for Don Isidro Parodi
written in the 1940s), a peculiar critique of the state’s omnipresence ap-
pears. People nowadays demand that the government take care of every-
thing, Don Isidro claims disappointedly, adding that they even seek state
to punish them (Borges and Bioy-Casares 1983). Conversely, in the con-
text of capital punishment, it is implied that people want the state to kill
someone instead of the people themselves taking justice or expiation in
their own hands. It is a pretty unexpected critique of the death penalty,
not criticizing the killing but the state’s monopoly on it. This paragon of
gaucho morality serves here as a methodological instruction; the question
of authorization is open to contest and various acts understood as pun-
ishments are performed not as a private interest but as political acts.
Is this a privatization and refeudalization of punishment? Although it
is hard to distinguish the two and the usages of certain concepts might be
symptomatic of a social situation, I would say no as a political program
but yes as a research program, not giving rights in a normative universe
but acknowledging the open contests in the politics of punishment. “Per-
haps the view that all private punishment is indefensible arises solely
from the fact of our constant exposure to institutionalized forms of pun-
ishment” (Simmons 1995, 223). The claim is on the right track, as ex-
plained above, but it should be taken with caution. Perhaps “private
punishment,” in a nontrivial sense, is a “wooden iron,” because all the
private relations exist within the sphere of public authority, and private
agents are, in fact, implicitly or explicitly, through customs or interpreta-
tions by the figures of authority, entitled to perform punishment as
30 Introduction

agents with transferred authority. The important fact is that, probably as

long as there is conflict, there is no consensus on these boundaries. The
edges of authority are shifting and open to contestation by various agents
of punishment from self-authorized vigilantes to those who find legiti-
mizing refuge in discourses of alternative communities and enjoy author-
ization of diffuse and organized groups, be it religious groups, political
revolutionaries, or syndicates of organized crime with their codes of hon-
or and procedures of punishment. I offer several examples that corrobo-
rate this point.
First, honor killings may be abhorrent and highly morally repulsive
from a certain point of view, but they are part of a cultural system and
understood as punishment by their agents who protect the honor code by
performing them (Cooney 2014). It may be “bad” and the “It’s part of my
culture” argument does not have to convince anyone as such, as Brian
Barry argued in Culture and Equality, where peaceful Moriori from the
Chatham Islands are slaughtered (cooked and eaten) by the belligerent
Maori invaders from New Zealand, “according to their custom” (Barry
2002, 253–54), but that does not alter the fact that this practice is punish-
ment, legitimated by some and delegitimized by others. According to
Cooney, who discusses the matter in detail, these acts can be viewed
simply as crime or as gendered violence, but from the point of view of
sociology of punishment they represent a clear instance of penal “social
control”: “Specifically, it is a form of punishment. To the parties them-
selves (as distinct from external observers), honor violence is inflicted by
the family to punish wrongful conduct, actual or alleged, against the
family” (Cooney 2014, 407). 13
Second, the punishment of children is a good example of shifting
terminologies and claims for legitimacy. Punishment in the family is an
area of historical contest and change: what was once a given right of the
father—a Roman paterfamilias, endowed with jus vitae ac necis over the
members of his family and slaves, “constrained” only by compulsory
consultations with the male only consilium domesticum in the case of “pri-
vate” death sentences that he had the right to impose because this right
was delegated to him within the authority structure of the political com-
munity—is now mostly proscribed in the West on the level of proclaimed
rules and seriously curbed on the level of practice. Attempts at physical
punishment by the father are not an exercise of right but a breach of law,
associated with the categories of the relatively new cultural imaginary,
such as the wife batterer and the child abuser. Liberal upbringing con-
tests punishment in general as a method of education. The Lockean nor-
mative definition that sets boundaries on public power in the family is
contested today: “Parents are natural educators morally charged with the
task of turning their young dependents into civilized adults, and they
need, common sense insists, the possibility of punishing to succeed”
(Quinn 1995, 47). While fathers as mini-sovereigns in the part of the histo-
 Discourses on Violence and Punishment 31

ry of the Ancient Rome were the rulers of life and death, contemporary
liberal democracies profess a zero tolerance for violence in education and
in the families. Although some of his legitimization of government as
trust survived, Locke’s ideas on a natural right to punish children who
still have to come to reason have proven to be shaky. They were aban-
doned and then reintroduced in political and discursive battles on the
right of punishment where the advocates of such rights are much more
careful; even if administered, punishment of children has to be “justified”
or “proper,” meaning that it can be otherwise. In a relatively recent bi-
zarre case of a failed adoption in Croatia that became public, an adoptive
family that had passed through all the bureaucratic obstacles and finally
obtained custody for three children quickly filed a complaint on the deci-
sion to adopt three boys aged two, four, and six. They returned them
“successfully” to state children’s home after two days, citing that “they
couldn’t put them in order by non-violent methods” (Turčin 2014). In the
system where punishment of children is legitimized, citing this reason as
grounds for the return of children would not have made sense.
A third example is quite primordial: revenge. As Francis Bacon fa-
mously had it several centuries ago: “Revenge is a kind of wild justice.”
This definition opens the short essay On Revenge, but what makes this
interesting? To be sure, before answering the question, Bacon’s position
on the matter is unambiguous. The normative continuation is: “which the
more man’s nature runs to, the more ought law to weed it out.” But the
point here is again simple: whatever we might think of it, even if it is wild
and should on some grounds be weeded out, it is ultimately justice, at
least as it is thus understood by some. Politics of authorization can both
reject and accept various political phenomena that have to do with pun-
ishment, penal policy, and justice, such as banditry and haidouks (in-
stances of crime or of heroic plebeian justice), the national states (the only
viable protection of rights or political vehicles of scam and oppression for
the anarchists), and the universal schemes of natural law à la Chomsky,
for whom in the debate with Foucault, judge is not a machine of the
positive law but someone who should, if sane, not judge by the law if the
law is unjust (see Chomsky and Foucault 2006, 46). Similarly to these
phenomena, revenge is for some just punishment, and punishment is an
open game. Various practices can be enveloped by the concept: extreme
killings in Indonesia in the 1960s during the course of Suharto’s rise to
power and the subsequent proclamation of the “New Order,” practices of
imprisonment and rough justice within prisons, and probation and the
sketched practices of the neocaliphate.
Fourth, and probably as bit old as revenge or at least as political order,
we have assassination. We can polish off this point with several excerpts
from Bauman’s hermeneutical points on political violence as an example.
He describes political killings as an old genre of violence: “Political assas-
sination is as old as humanity and the chances that it will be dead before
32 Introduction

humanity dies are dim. Violence is an un-detachable companion of inter-

human antagonisms and conflicts.” However, when he speaks of the
Charlie Hebdo terrorist attack comparing it to the 9/11, he uses the lan-
guage of punishment: “On 11 September 2001 political assassinations
were directed not against specific, identifiable and named political ‘per-
sonalities’ in the political limelight, or for that matter against people held
personally responsible for the wrongdoings the assassins pretended to punish,
but against institutions symbolising the economic (in the case of the
World Trade Centre) and military (in the case of the Pentagon) power.”
The attack on the media, “as responsible for public mind-setting and
opinion-making,” is framed as an act of punishment: “It was the people
engaged in such activities that the assault was meant to point out as
culprits to be punished for causing the assassins’ bitterness, rancour and
urge of vengeance.” Finally, a specific form is ascribed to punishment,
returning us to Bacon: “And second: alongside shifting the target to an-
other institutional realm, that of public opinion, the armed assault against
Charlie Hebdo was also an act of personalized vendetta (going back to the
pattern set by Ayatollah Khomeini in his 1989 Fatva imposed on Salman
Rushdie)” (Bauman 2015; italics added).
Honor killings, corporal punishment of children, revenge, and assassi-
nation: all of them are designated as crime or punishment, depending on
the moral and political perspective of the instance that assumes charge of
the designation. This brings us to the third defining element of punish-
ment, suggested by the quotidian exchange of “no offense” and “none
taken,” ironically often by the people who actually offend and are of-
fended. Similarly, punishment is given and taken without an active
breach. There does not need be an offense, performed by the punished
subject as a result of his or her autonomous action, while the latter is
understood not as a philosophical problem but as one of the tenets postu-
lated within the common sense. And perhaps “offense” does not to have
to be “taken” by the agents of punishment who perform the punishing as
a general political program, without the necessity of moral condemnation
of the concrete persons caught in the punishing machine. Punishment
happens without hate and reproach, guilt and transgression, even if some
or all of them are expressed by the participants and read into transaction
by psychology or ideology. 14
If punishment doesn’t have to be formal, endowed with the wide
political consensus and performed within a formal structure, another ba-
nal if gruesome fact is that someone doesn’t have to be guilty at all to be
punished, as in Alan Pakula’s Sophie’s Choice (whose “Polish” flashbacks
were filmed in Zagreb’s Jadran studios, to add a bit of native trivia). The
moral scandal in the film is in the fact that the mother, arriving at Ausch-
witz and belonging to the category of the punished, not for any individu-
al deed done but for simple fact of ethnicity, has to choose between her
two children in order for one of them to survive (if she doesn’t make the
 Discourses on Violence and Punishment 33

choice, both children will be gassed). The emotional horror and the para-
dox of the impossible choice cannot be done and yet has to be done.
Sophie picks her son over her daughter, who is then sent to the gas
chambers. Ultimately, Sophie commits suicide, perhaps unable to live
with the, we might say metaphysical, consequences of choice. One can
simply belong to a category, have some ascribed traits, and thus be scape-
goated, discarded as a material for punishment by ideology or a political
decision. Pogroms and purges are actions of collective punishment, with
historical examples appearing both on the extreme Right and extreme
Left, with determinants of race, gender, ethnicity, religion, class, and po-
litical affiliation as a criterion (e.g., lynches of blacks, witch hunts both of
women and communists, pogrom nights such as St. Bartholomew’s and
Kristallnacht, actions of Red Guards and Khmer Rouge, and so on).
Here I definitely exit the boundaries of normative discussion that usu-
ally requires individual agency for punishment, in contrast to academic
social psychology that can take into account masses, the role of bystand-
ers, and collective phenomena—for example, in the literature on war
crimes and genocide. I provide three examples exhibiting this controver-
sial trait of punishment as it is widely conceived; one is historical and two
contemporary.
The first one is of collective punishment, sometimes associated with
collective liability as a legitimization. Nazi practices from the Second
World War are perhaps best known, in the Balkans and elsewhere, by
tariff of ten members of the indigenous population, including civilians,
that were to be shot for one killed Nazi soldier, as all the children learn-
ing history from Yugoslav primary school textbooks had the opportunity
to learn. The practice is old and widespread, often found in punishing
heresies and rebellions, both in the crusades and in the imperialist prac-
tices of colonial administrations. The hermeneutic of collective punish-
ment appears in the context of Middle East conflict, both in association
with Israeli politics in the Gaza Strip and Hamas’s actions, where the
phenomena of group violence, associated with the logic of endless retali-
ations, are understood as punishment. It all goes against the contempo-
rary dogmas of liberalism and international criminal law, encoded in the
Geneva conventions that categorically forbid collective punishment. 15 In
contrast to that, concepts such as collateral damage have emerged to
euphemize the damage done to the rest of the punished lot, unlike the
older tribal customs from the realm of anthropology that openly ac-
knowledged the collective conflicts and punishments. Collective punish-
ment may be morally abhorrent and politically destructive but the fact
remains that individual guilt and punishment is not the only discourse in
town.
One appropriate example of dilemmas appearing within this dis-
course is offered by Calm at Sea, a 2012 Volker Schlöndorff film, based on
the historical episode illustrating the Nazi regime practices of collective
34 Introduction

punishment (Kollektivstrafe) as an augmented retribution not too bur-

dened with the finer details of collective responsibility doctrine (Kollektiv-
haftung). In October 1941 a German officer is killed in Nantes by the three
young communists. The film dissects the intricacies of the mechanism of
transmission of the Führer’s will, which demands the death of no fewer
than 150 citizens. It is a problem for the Vichy regime and also for the
army gubernators such as Von Stülpnagel and the soldier-writer Ernst
Jünger, on whose memorandum On the Hostage Question the film is par-
tially based. They oppose the augmented retribution operationalized by
Hitler’s overblown equation, but also for pragmatic reasons. The French
are individuals and republicans, as they claim, in opposition to the Slavs,
such as the Poles, so a draconic policy of punishment might lead to re-
volt; practically, it also opens up questions of the exact number, method,
intervals of killing, and characteristics of those to be killed. For example,
should Gaullists also be killed as communists, at the same time or not,
thirty or fifty of them? Should they be shot, hanged, or guillotined? And
so on. Since the assassins are young and opponents of the regime, the
executed have to be communists and political prisoners, chosen from
among the detainees, of which one turns out to be only seventeen years
old. The French subprefect refuses to make a Sophie’s choice and replace
the ones with the others and appears in the name of the Vichy regime,
cynically demanding courage in the name of France and expressing con-
dolence. Although some eschew martyrdom, the communists find paral-
lel with the Christians in accepting martyrdom. Note that in the example
there is subordination to arguably illegitimate authority, but no offense. I
will die because of the crime I did not commit, wrote one of the detainees
shortly before the shooting. On the other part, a possibility of counterpun-
ishment appears in flirting conversation between Jünger and a singer played
by Arielle Dombasle: the assassination of a tyrant, an old historical genre of
political struggle, is mentioned as one of the possible solutions to the situa-
tion of excessive violence and punishment, lacking any legitimization. (Of
about a dozen recorded failed plans and attempts, the most memorable is
found in Graf von Stauffenberg’s Walküre putsch in 1944.)
Second, a contemporary and micro-institutional example is offered in
an account of Nadežda Tolokonikova, incarcerated frontwoman of the
punk band Pussy Riot. She ended up in a penal colony in Mordovia for
performing a sort of iconoclastic liturgy in the Cathedral of Christ the
Savior in Moscow. Her controversial letter putting the Russian prison
system in the spotlight portrays collective punishment as an essential
practice of imprisonment in prison colonies, offering punishment within
punishment:
The administration, petty and vengeful, will meanwhile use all of its
mechanisms for putting pressure on the prisoner so she will see that
her complaints will not help anyone, but only make things worse. They
 Discourses on Violence and Punishment 35

use collective punishment: you complain there’s no hot water, and they
turn it off entirely. . . . It is possible to tolerate anything as long as it
only affects you. But the method of collective punishment is bigger
than that. It means that your unit, or even the entire colony, is required
to endure your punishment along with you. (Tolokonikova 2013)
Third, the case of the United States detention camp at Guantánamo
Bay is widely known and serves to corroborate theories of permanent
state of exception far from the tenets of republicanism, liberal democracy,
and the seriously understood rule of law. Quae siletis juristae in munere
vestro? Why are you lawyers silent on the things that concern you? Thus
Agamben began his story in the State of Exception (2005), paraphrasing the
older saying of Alberico Gentili that demanded the silence of theologians
in munere alieno, that is, in what did not concern them. He saw modern
times as defined by the permanent state of exception and anomie lurking
behind the hyper-regulation and the discourse of human rights that in
the gnostic lines of the Coming Community he saw as a sham, negating the
true freedom of nonstate singularities (see Agamben 1993, 85). More pro-
fanely and on the level of the concrete subject without rights (homo sacer),
a detainee whose body is far away from simple definition that right is an
enforceable claim since he has no rights, numerous reports, documents,
films, and testimonies have accumulated. The last one is by Mohamedou
Ould Slahi, the author of the Guantánamo Diary, a Mauritanian who was
imprisoned in Guantanamo in 2002. He describes the practices of punish-
ment outside of law that simply happen as a political fact, a punishment
placed outside of law and legal rights, in the sphere of the reason of state
and equation of power. Listening to threats issued by the local agents of
inquisitorial torture, which obviously don’t have legal character, he takes
them seriously: “I knew that he was speaking on behalf of the most
powerful country in the world, and obviously enjoyed the full support of
his government” (Slahi 2015). Guantanamo emerged as a place of pro-
longed torture for the enemies of the political order that are excluded
from legal order, reduced to Agambenian bare life in the political state of
nature. And its punishment, not only an instrumental operation per-
formed to obtain information that is more efficiently obtained in another
way, was a treatment of enemies, a retributive operation performed on
their bodies, a factory of torture and false and unreliable confessions that
are beside the point. The state and its agents punish outside of law as the
extracts from one detainee’s morbid diary, disseminated by the Guardian
and named Torture at Sea and False Confessions, exemplify. In the times of
war, even if it is a new and strange kind of war, nonlegal doctrines of
exception emerge, praising the professionalism and astuteness of the ex-
ecutive, the habeas corpus right is suspended, and ticking bomb scenar-
ios spring up like mushrooms after the rain, fictive and caricatured, to
implicitly legitimate torture in the realms of utilitarian analytical ethics.
36 Introduction

And, finally, to perform the two I believe ultimate stretches of the

concept: First, both in its horizontal broadening and its vertical appeals to
heavens, the agency of punishment in some discourses might not be hu-
man and visible in the corporeal sense. The supernatural instance may be
constructed in a discourse, as was done by preachers of various religions,
after disastrous events including human agency such as the September 11
attacks, or forces of nature mixed with human action and inaction in
areas of preparation and reaction, such when Hurricane Katrina hit Loui-
siana. Death and destruction were seen as divine retribution and punish-
ment for various sins, the concrete interpretation depending on the relig-
ious affiliation of the zealot. This discourse is very old. Hofstadter pro-
vides one example when discussing American anti-imperialists: “They
suggested that the violation of these political traditions (under which the
nation has prospered) was not only a gross injustice to others, of which
we should feel deeply ashamed, but also a way of tempting Providence
and risking degeneration and disintegration as a sort of punishment for
the atrophy of one’s own principles” (Hofstadter 2008, 172). One can
trace this discourse of “divine” punishment for sins both in more relig-
ious and secular variants in history, more than a hundred years before 9/
11, in the Spanish American War, and so on. The point is that both the
subjects and the objects of punishment should be thought of broadly, as
the following chapters show, especially the ones on religion, fiction, and
criminology. Some of it may be funny and strange at first, or perhaps
outrageous and dangerous, but these are also discourses worthy of explo-
ration, at least on the level of their usage to justify some actions that
include earthly punishment.
A second stretch brings us to the muddy and marginal—and thus an
extremely interesting and conceptually important space. It is closely asso-
ciated with the just discussed problems in the realm of divinity. This
space opens when subjects and objects come close or together. To think of
them broadly does not mean that we should allow for the blind spot of
ignorance when the punisher and the punished coincide.
Punishment may, of course, be an internalized moral technique that is
perhaps more interesting for ethics, psychology, and psychoanalysis than
for law, sociology, or political science, or traditionally—when more sin-
gular discursive system governed the world—religion. The object is not
solely the soul: it may also include the body. 16 Medieval zealous apology
of corporeal self-punishment, for example, offered in word and put to
practice in deed by St. Peter Damian comes to mind. For the purposes of
this book, however, a flagellant technology of the self is less interesting
than the punishment that comes about from the opposition of wills: a
punishment for blasphemy ordered by the authorities or, in another time
and context, a geography of scars on the backs of black slaves, a scar
tissue of the pain inscribed in the body, a relievo of historical injustice, a
 Discourses on Violence and Punishment 37

Jackson Pollock’s picture on the flesh as the punishment for unsuccessful

escape attempts, or a simple whim of the slave owners.
The interesting aspect of this issue is thus found somewhere in the
middle of the two types (punishment by other and auto-punishment),
since the exact line between the individual and society is sometimes hard
to draw. An individual can only perform what is expected and suffers
sanctions, symbolic or other, if self-punishment is not performed. The
ritual of exomologesis characteristic of the early days of the Church offers
an example, showing how penance and penitence are not only similar in
etymology to punishment but can merge in practice. 17 A penance, but a
compelled one, demanded by the community, and gradated almost in a
utilitarian manner (but infused with symbolism beyond a stripped-down
calculus of pain), depends on the magnitude of the sin committed. 18 In
order to remain members of the Holy Church and save their souls, out-
ward punishment or public penance, different from the sacrament of
confession, was required for transgressors—for example, symbolically
weeping in front of the church. The contemporary fictional example is
perhaps offered in Game of Thrones, where corrupt and scheming Cersei
Lannister, the queen mother, is forced to admit her “acts of falsehood and
fornication” by the influential religious sects the Sparrows, bringing close
the atmosphere from Marguerite Yourcenar’s The Abyss, while their lead-
er, the High Sparrow, evokes historical religious charismatics such as
Girolamo Savonarola and their bonfire of vanities. Her walk of shame—
penance, or simply punishment: the labels vary across the Internet, while
the High Sparrow speaks of atonement—was performed without under-
wear unlike the similar historical show performed by Elisabeth (“Jane”)
Shore, the mistress of the deceased King Edward IV, in the case cited by
G. R. R. Martin as a historical example that inspired the famous scene.
After Lannister’s long blonde hair is cut by nuns, as if she were a “collab-
orationist” sleeping with the enemy in World War II France, she is forced
to walk naked among the frenetic mob, who throw garbage and rotten
food at her, insulting and spitting on her at the same time. And as the
focus is on the exposition of her sinning body and not on her words of
repentance, she stoically advances through the beautiful architecture of
Dubrovnik serving as King’s Landing for the purposes of the series,
while she is followed by a nun who repetitively rings a bell and recites,
“Shame, shame.” 19
In any case, although this treatise generally excludes self-punish-
ments, it seems that a full formal definition of punishment should accom-
modate such phenomena as infliction of pain by the (collective) self on its
body and/or soul. So the earlier definition should finally be amended by
the formulation as follows: “The subject and object of punishment can
coincide, meaning that the punishment is sometimes performed on the
same person or group that does the punishing.” And the additional re-
mark would be that the sources, means, and ends of this practice may
38 Introduction

vary from, let’s say, the redemption of the sinning subject who autono-
mously applies punitive techniques on the self to the not-so-autonomous
transfer of higher punitive agency to the self, while punishment may
vary significantly, sometimes coming down to moral recurrence of
thoughts or prayers, and sometimes to the prongs of a whip on the back
of one or many. Or to death. Self-annihilating punishment is accepted,
authorized by the self, as in Rousseau and Hegel, as we shall see, where
the higher self, postulated by the political theorists (and theologians),
accepts capital punishment, sacrifice of the lower self, to be reaffirmed as
a citizen, an ideal member of the polity.
This wide conceptualization of punishment, paired with the narrower
conceptualization of violence, provides a coherent and interesting area of
analysis. In fact, the accent is put on punishment as a specific form of
violence pertaining to purpose and legitimacy. An alternative title could
be Discourses on Punishment, but since the story goes wider, it made sense
to single out violence as well. 20 Besides, even if it is relatively clear that
not all violence is punishment and that, on the contrary, all punishment is
violence, the discursive battles rage about the boundaries of these con-
cepts, especially about the question of which punishment amounts to
only violence. We may question it, or dislike it, say it is senseless vio-
lence, but it is a working institution of the empowered (or those strug-
gling for more power): the (self-)authorized guys punishing a body with-
in the system of rights, duties, and sanctions imposed within a legal,
moral, or political framework proclaimed in the name of an effective or
aspiring authority—infliction of pain, disparity of power, and instance of
authority that one day rises, transforms, or crumbles, together with its
punitive practices. Just think of all the options for torture provided by the
tools on the cover illustration—a nineteenth-century wood engraving of a
Nuremberg torture chamber. 21 They are all punishment, as are honor kill-
ings, revenge, collective punishment, extrajudicial punishment, or political
assassination, however our civilization wants us to disdain such practices.
To say all of this is, obviously, not to offer a normative theory of
punishment that says every violence with pretension of punishment is
legitimate punishment and that we should accepts it as such and unleash
a universal saturnalia of mutual punishment, a political natural state of
all punishing all, as the world or state might order. That would be non-
sense. I simply think it is polite to leave explicit normative considerations
and elucidations to the reader, while my point is to highlight the wide
empirical scope of the usage of concept, to trace the width of discourse of
punishment intimately connected with violence. On the other hand, as it
is not a normative advocacy, it is perhaps less obviously not a value
neutral explanation either, since that seems short of impossible. The very
choice of theme, its vocabulary, and presentation, however distancing
and neutral in its pose, is not exempt from society, politics, and language;
it is a part of social process, coming from it and returning to it if even one
 Discourses on Violence and Punishment 39

person reads it. In other words, it is what Anthony Giddens has called a
double hermeneutic, referring to the spirals and circles in which social
concepts enter and reconstruct social reality (Giddens 1990, 15–17, 36–45,
53–54, 152–54). Social science explanations are not condescending truths
diagnosed from the top of Mount Olympus but are made of language
that moves or bores, that calls for revolution or conserves the existing
system, but in any case is not exempt from the social arena it dissects
with a pretense of neutrality. What is offered instead is a broad discursive
inspection of violence and especially one that is attributed as penal, that
is, the one “pertaining to punishment or penalties” (Rush 2003, 262). It
refers to the mess of normative and empirical in the realm of the institu-
tional and the possible that is often called politics, bringing forth the
ultimate consequences of this conceptualization.
If we accept that a wide conceptualization of punishment implies poli-
tics, it goes hand in hand with a wider definition of a penal policy that is not
understood as an administration of punishments (paired with their penolog-
ical rationalizations in the realm of discourse), within or outside prisons, but
as a quite broad and socially penetrating political process, sometimes de-
noted as criminal justice policy making or criminal justice politics. 22 It im-
plies a complex process of devising, legitimating, and implementing punish-
ments connected with various actors, institutions, and discourses from high-
ly visible places to less-visible capillary venues of concrete practices. For
example, in a modern state such a definition may include party positions,
parliamentary debates, interest groups, various levels of executive power,
presidents, prime ministers, ministers, and media coverage as a part of the
agenda setting and evaluation process, as well as more classical places of
state policy such as courts, state attorneys, lawyers, police, prisons, proba-
tion and parole officers, and the penal population itself. Of course, we
should not forget academic venues of discourse production, and various
areas such as architecture or urban planning and public policies that affect
punishment, governmentality of the population interpellated by these in-
stances and discourses, and religion too is there, as John Lennon would have
it. Procedurally, this political area is sometimes defined by inertia and busi-
ness as usual but there, often in silence, change grows, in association with
counterpractices, contestations, and small shifts that can accumulate into
strategies. Prison mutinies or high-profile cases can change or point at the
conditions in prisons, as can the decisions of higher national or supranation-
al courts, just as high-profile cases of violence and punishment, preyed on
by various groups of policy entrepreneurs, can change public opinion and
influence policy change, be it suffering of the victims or suffering of the
unjustly punished.
Instruments of the penal policy are also political. They are used not
only for the deal-making purposes of just punishment, whatever that
might be, but for the political purposes of the regime, its preservation and
stabilization, such as, for example, antiterrorist legislations or antiprotest
40 Introduction

laws giving a regime an executive discretion or placing punishment in

the sphere of administrative sanctions that avoid the strictures of judicial
scrutiny. Without mystifying any moral majority that could do without
state interference, one can say this is an area where an average citizen can
get hurt within a game played by an authoritarian government, various
lobbies, ideological and interest entrepreneurs, bureaucracy, and aca-
demic legitimization. One might not do anything especially morally
wrong and still can provide the cannon fodder for the penal system, since
on various levels of the penal system and its implementation frame-
works, one can observe the phenomena of cynical equation of the perpe-
trator and the victim and operative stereotypes based on race, gender,
and class. Implementation is the key segment where law and politics
intermingle. It is the weak link long ago registered in the policy studies, a
place where policy actually happens, performed in the game of street-
level bureaucrats (Lipsky 2010) and their clients, in contrast to what is
projected somewhere else (Pressman and Wildavsky 1984). Penal policy
is, in other words, a fundamental public policy that decides on the legiti-
mate use of force in an order that determines what is allowed and what is
forbidden, what and who is punished. The questions of life, body, free-
dom, money, discipline, expiation, and combinations of these things all
happen on the terrain of the politics of penal policy. Who is going to get
punished is the question that involves political power more often than
the ideally conceived democratic voice.
Is the analysis politically and policy relevant? It might be in the long
run. This book does not pretend expertise on public policy, nor a fine-
grained policy analysis anchored within a specific set of historical institu-
tions and discourses that could influence penal policy making directly
with an operationalizable idea. It doesn’t weigh in with a solution for a
concrete controversy in the field of penal politics. The short portrait of the
field suggests what is at stake: a concrete political machine or assemblage
cannot accept everything or even anything from a transepochal and out-
landish discourse menu. Many “great” perspectives get constrained in
concrete arenas of policy and planning burdoned with various pitfalls of
policy change, feasibility, and effectiveness; many unclear and unprinci-
pled policies are fixated and taken for granted as a result of the status quo
of institutional and interest group politics. Police and prisons employ
people, they form a political constituency. On the other hand, perhaps
some compromises are good and keep the world going round. Discourse
to reality, it is as a seagull returning from the skies to the sharp cliffs,
fighting for food and petty survival of the flock. But this does not mean
one should stick to a frog’s-eye perspective. As several feathered excla-
mations in Jonathan Livingston Seagull had it, there is perhaps a perennial
problem for those who speak “truth in the face of the Flock.” However,
there is an emancipatory potential as well that goes with the “telling
 Discourses on Violence and Punishment 41

point” of the broadness of vision and understanding: “The gull sees far-
thest who flies highest” (Bach 2003).
To have a broad historical perspective can help speculations about the
future. A short example will suffice to illustrate this. Every policy claiming
to be rational has a goal. Punishment is rationalized as having a goal. It aims
at sending a message and achieving change, if not on the punished, who is
sometimes still expandable, then to the flock. It has a dialectic to it: it
changes the object and it is changed itself in consequence. In the process,
nature or nurture distinction becomes shaky since by punishment, perhaps,
human nature is changed—altered, improved, or perverted, as in a Kenil-
worth’s drama evoked by Coetzee’s Disgrace, governed by Blake’s adage
about the advantages of murdering an infant (rather than “nursing unacted
desires”). Elias and Foucault offer such accounts: one of the taming of the
affects and the building of the closed man, homo clausus, and the other,
similar, of a Nietzschean genealogy of the modern soul through punishment
that changes the subject as the historical silts of discipline replace the public
theaters of cruelty. It is far away from concrete questions of fines and prison
reforms but still relevant in the long run; good answers to big questions can
induce changes, maybe not as big as the Hegelian sweeps of Hugo’s ideas
whose time has come, but it still seems worth a shot or a read, even if the
small practical innovations of unworthy origin are those that build up and
change things in the end, as in a Foucauldian genealogy.
To sum up, these discourses on violence and punishment bring together
political theory, history, comparative politics, comparative religion, crimi-
nology, fiction, and theodicy, and diverse empirical extremes to broaden the
discussion on punishment and violence in the context of penal politics (see
table 0.1). Since I offered a sense of the possible as another widening of
scope in thinking about punishment, I owe a closing caveat on the usage of
fiction: I use a wide array of fictional examples, as I already did in this
introduction. This approach sometimes raises suspicions. For example, Bau-
meister discarded the usage of fiction in his discussion on a theme similar to
this one, especially objecting to the blurring of the boundaries between the
two: “Many books are filled with such illustrations and some do not even
seem to regard as meaningful the difference between, say, something said
by Macbeth versus something said by Ted Bundy” (Baumeister 2001, ix). I
am not of that opinion; fiction may be very useful, and I discuss this further
at the beginning of the sixth chapter. However, I am also very aware of the
distinction, and I am not saying that fiction is real, or that it is equivalent to
reality or history, since it is not. However, I think fiction can offer a good
illustration that makes things interesting or offer a heuristical broadening
that can be interesting in thinking about the real for those who rightfully
care about the difference. The possible can become the real if it isn’t already
tailored to closely fit the referent reality. With that in mind, we can finally
listen to some discourses on violence and punishment murmuring.
 42
Area Definition Discourse Examples Traits Challenges and
Outcomes
Death penalty Extreme of political Quasi-messianism Political theology Political catharsis
state legitimization Decisionism of sovereignty or anthropology of
punishment Contractarianism Common good sacrifice
Utilitiarianism Individuals as Affirmation or
Marxism means or ends crumbling of
Abolitionism sovereignty
Biopolitical
alternative
History of Change of historical Penal evolution Linear vs. Humean sun (also
punishment across time change Marxism reversible rises—or not)
Civilizing of affects Teleological vs. Coherence and

Introduction
Eclecticism ateleological contradiction
Sociology and
history
Comparative Difference of global and Judicial caning Methodology of Globalization,
politics of across local Prison as ghetto stranger vs. transfer, history,
punishment space contemporary Sharia execution politics of future vs.
practices Chemical numbers comparative statics
castration An extreme is the of difference
Public matter of a point Pitfalls of culture vs.
indoctrination of view overstretching of
Democide politics
Penal welfarism as
nationalism
Hidden penality
Mercy of a fascist
sovereign vs.
 penal law of
democracy
Power to Ability, of cause, Disciplinary Punishment as a Too big a concept
punish constraint, function (social procedures tool of power: vs. nominalism
and freedom science), and Thanatopolitics strategies and Sociologism vs.
political Torture and tactics that serious
critique democracy backfire interdisciplinarity
(ideology) Extrajudicial killing

Discourses on Violence and Punishment

Religion and Sacred law of religious Fool as a king The nature of Secularization vs.
punishment legitimization Reticent ruler human beings fundamentalism
Retribution as before God Mixed messages
justice
Forgiveness
instead of
punishment
Aesthetics of Possibilities of the possible Books, films, and Goodness vs. The possible may
violence and of fiction other works of art dangerousness of become the real vs.
punishment more or less the subjects in the possible is not
subsumable under social and the real: reality
the categories of political context checks (and
Left and Right Narratives of the balances)
possible offering
ideas and
legitimization for
penal practices

43
 44
Science of Elements of of the scientific Theories of crime Sociological, Interests, biases,
violence and truth as the knowledge on presenting causes anthropological, politics, partiality,
punishment politics of crime and solutions for biological, or feasibility:
knowledge crime as a societal environmental narratives in the
problem factors: order of arena of differences

Introduction
things producing and political contest
crime defined by Political prophylaxis
the societal order of criminology
Theodicy of Justification of making Examples of Evil as a cruel Evil crusade/jihad
violence and of the unjust sense of the seemingly agency vs. evil as against evil
punishment world pain pointless cruelty, a cynical system Dissolution of evil
suffering, and and the death of
death politics
Candide’s irony
 Discourses on Violence and Punishment 45

NOTES

1. The quotes are taken from the Facebook commentaries appearing under the two
versions of the report on the portal NewsRescue.
2. There are various ways to approach violence as “an evaluative, perhaps even a
normative concept” (Buffachi 2005, 195): for example, as something good, as some-
thing generally bad, or something bad from the perspective of instrumental rationality
of intelligent power seekers (see Sorel 1999, 41; Collins 1974, 418; Baumeister 2001, 120,
131).
3. Violence can even be philosophical, to name one of the possible vague attrib-
utes. The extremely wide conceptualization of violence is perhaps most famously
illustrated by Derrida (2001, 70, 74, 121, 162, 146, 165).
4. For example, violence against children as a traditionally vulnerable category
includes not only physical violence but also sexual violence, mental violence, and
neglect or negligent treatment (United Nations 2014, 9).
5. It is one of the positions that can be attributed to one of the “Marxes” (Althusser
seemed to distinguish at least two of them). See Roubini (2011) for the contemporary
rendition, combining both moments of action and inaction, in what might be called a
Bartlebian business.
6. The distinction between individual and society is only one of the ways to ap-
proach the problem of violence. There are theoretical approaches that look at violence
neither structurally on the systemic level nor individually on the level of autonomous
life histories of the perpetrators. For example, Collins develops a micro-sociology of
violent confrontations defining violence as “a set of pathways around confrontational
tension and fear” (Collins 2008, 8). For the macro-sociology of organized violence,
dealt with in the next disclaimer, see Malešević 2010.
7. Although self-punishment is not a theme of this book, it is an interesting phe-
nomenon for conceptualization of punishment that I discuss on several places in this
section instead of simply excluding it.
8. See the simple canonical definition that subsumes enlightened approaches
under punishment: “By ‘punishment’ we mean any measure that is imposed on an
offender in response to an offence, even if it is intended to help the offender (or victim)
rather than to hurt or harm” (Cavadino and Dignan 2007, 62). Note also that this
definition has a “response to crime” element that I omit.
9. Rusche and Kirchheimer’s famous definition embodies this nominalism, radi-
cally historicizing punishment: “Punishment as such does not exist; only concrete
systems of punishment and specific criminal practices exist. The object of our investi-
gation, therefore, is punishment in its specific manifestations, the causes of its changes
and developments, the grounds for the choice or rejection of specific penal methods in
specific historical periods” (Rusche and Kirchheimer 2003, 5).
10. Old French peine can be associated both with the earlier “pain of death” for the
death penalty, denoting an outward procedure on the body, and with the later expres-
sions that refer to inward feelings, such as localized “pain in the neck” (see the entry
“Pain” at Etymonline). This etymology is important for Scarry: “the fact that the very
word ‘pain’ has its etymological home in ‘poena’ or ‘punishment’ reminds us that even
the elementary act of naming this most interior of events entails an immediate mental
somersault out of the body into the external social circumstances that can be pictured
as having caused the hurt” (Scarry 1987, 16).
11. A categorical statement of this position can be found in Spierenburg: “From a
sociological-historical perspective, the essence of criminal justice is a relationship of
subordination. . . . This is the crucial point. This element distinguishes punishment
from vengeance and the feud, where the parties are equal. If there is no subordination,
there is no punishment” (Spierenburg 1984, 2). Pointing to brevity of horizontal small-
scale violent encounters, Collins’s discourse also exemplifies this understanding that
associates punishment with structural or situational disparity in power. In cases
where a man (woman, child) down is hit, he writes, “in effect there is no real fight but
46 Introduction

a massacre or punishment” (Collins 2008, 16). Similar reasons on a grander scale led
Kant to discard the concept of punitive war “because there is no relation of subordina-
tion . . . as between Superior and Inferior” (Kant 2010, 9).
12. Dictionaries written for practical purposes offer such clear and mundane defini-
tions of punishment: “In criminal law” punishment refers to “any pain, penalty, suf-
fering, or confinement inflicted upon person by the authority of the law and the
judgment and sentence of a court, for some crime or offense committed by him, or for
his omission of a duty enjoined by law” (Rush 2003, 292). This minimal legal positi-
vism usually goes with some normative considerations such as the general legal prin-
ciples demanding that no one can be punished outside of the law.
13. Honor killings as punishment, however, adhere to the sociological pattern of
subordination and exemplify a grim statistical regularity: “honor violence is most
likely and lethal when a highly subordinated woman with a record of deviant (inde-
pendent) conduct who is a member of a highly organized family is accused of an
unauthorized relationship with a lower status stranger and cultural outsider” (Cooney
2014, 420).
14. A historical paradigmatic example, grim but clear: a Jew punished in the Second
World War by the Nazi regime simply for being a Jew can be designated as guilty by
ideology, or even feel guilty under circumstances by means of psychological rational-
ization that tend to make sense of the unbearable nonsense. A concrete Nazi, let’s say
an SS officer, performing duty, may be indifferent and not see the punished individual
as guilty (he has done no wrong but is a member of the officially hated collective—a
Schmittian hostis, a public enemy, not an inimicus, a person we personally dislike), or,
most probably, hate and see punished as guilty (each and every one of them is bad and
guilty). In any of the permutations, we are still dealing with punishment.
15. The fourth convention from 1949, states in its article 33: “No protected person
may be punished for an offence he or she has not personally committed. Collective
penalties and likewise all measures of intimidation or of terrorism are prohibited.
Pillage is prohibited. Reprisals against protected persons and their property are pro-
hibited.”
16. Could the object of punishment include suicide as a self-inflicted death penalty?
To play some more with this conceptual stretching: can one be “suicided” by the self-
authorized agents of punishment? Extreme punishment, when performed by clandes-
tine penal agencies, is found in the paradoxical institute of assisted suicide, having
absolutely nothing with euthanasia, a term more popular these days. To suicide some-
one, goes the ironic phrase, lo hanno suicidato luckily rendered in Italian (Stipčević
1994, 185). The example is provided by unlucky writers under Soviet regime, maybe
Mayakovsky, and possibly even Fadeyev: speculative character of the claims may thin
out as a wider conceptual space is accorded to regime’s “assistance.”
17. In the fourth chapter, I discuss the concept of exomologesis within a Foucaul-
dian framework on punishment and power.
18. After all, some see the relation of punishment and penance the other way
around, more or less exiting the historical domain of political liberalism: understand-
ing and critique of punishment as a species of secular penance, or even as a communi-
tarian sacrament for the lapsed, is another discourse, which I unfortunately lack space
to explore here directly (Duff 2003; Bourne 2014), offering chapters on political theory
of the death penalty and religious discourses on punishment as hopefully good
enough surrogates.
19. To make things more conceptually intriguing, vengeance is later returned for
such punishment. You did it because it felt good, the arrogant new queen explains
punishment inflicted on her to the tied nun to be executed. Punishment is seen as
sadistic enjoyment paired with illicit sexual relations in the last episode of the sixth
season of the Game of Thrones. Even confessing feels good under certain circumstances,
concludes Cersei Lannister, as forced exomologesis boomerangs back as torturous
death to the former agents of divine authority.
 Discourses on Violence and Punishment 47

20. Or On Punishment, as the anonymous reviewer suggested, but I felt it as a bit too
general and pretentious at the same time.
21. The initial choice of the cover picture for the book was a photograph depicting
corporal punishment in the late imperial China in the name of the Celestial Emperor.
It was one of the pictures taken by the Westerners during the decline of the Qing
dynasty that soon ended with abdication of Pu Yi, the last Chinese Emperor: “The
whipping or flogging with a paddle, known in Chinese as ‘bastinado’, was one of the
many forms of corporal punishment employed in Qing China to maintain civil obedi-
ence” (Cook 2012). Its meticulousness was fascinating: two holding the one to be
punished put on a rack with exposed buttocks, one overseeing the procedure, and the
principal performer holding a flattened bat as a baseball batter preparing for the
pitched ball. It was also highly ironical since the elaborated ritual was about to disap-
pear in the course of several years on a piece of soil were other practices and ideolo-
gies of punishment would unravel, the ones at which the comparative chapter takes a
short glimpse. That was not the only black and white picture of a bastinado, used as a
more or less literal retribution for the wife beaters of the time. However, the librarians
at the Library of Congress, unlike the batter who most likely hit his static target after
the photographer caught the moment for the eternity, were unable to find the particu-
lar one I fell in love with on the first sight, looking at it on the virtual pages of the
quoted tabloid, to find it again uncredited and used as a metaphorical illustration of
the contemporary monetary policies (Linette 2012). Since the questions of publishing
rights and good enough resolution were not resolved, I dropped it, as well as the
commercial stock photo of an Egyptian bastinado, and finally opted for an iStock
engraving of a torture chamber, evoking the Šibenik torture exposition from the sec-
ond chapter and more generally symbolizing—with a healthy drop of irony—the curi-
ous probing of various grotesque “objects” of violence and punishment, performed in
the book as a whole.
22. For further hopefully not too rusty general references in the interdisciplinary
field of criminal justice and penal policy making, see also Dye 2005, 60–91; Stolz 2002;
Marion and Oliver 2011; Welsh and Harris 2012.
 ONE
Death Penalty
Political Theory of Extreme Punishment

In his 1921 essay, mystical in tone and eschatological in content, Walter

Benjamin offered a critique of the death penalty. Its obscure language,
difficult to translate, had an inebriating effect. Incessantly read and inter-
preted, Critique of Violence gained the status of a sacred text of critical
theory. On the subject of death penalty, it said:
Its purpose is not to punish the infringement of law but to establish
new law. For in the exercise of violence over life and death more than
any other legal act, law reaffirms itself. But in this very violence some-
thing rotten in law is revealed, above all to a finer sensibility because
the latter knows itself to be infinitely remote from conditions in which
fate might imperiously have shown itself in such a sentence. (Benjamin
1986, 286)
If any punishment is instituted to protect the existing law, the ques-
tion has to be posed: what does Benjamin want to say in this prima facie
counterintuitive passage? To understand the fragment, which offers a
good starting point for the discussion, a helpful initial step is to locate it
within the history of ideas. Unlike Žižek, Benjamin’s dreams of divine
violence—an instance that should work against the imperious fate men-
tioned earlier—were not necessary violent, at least not in the sense of
bloody revolutionary terror giving birth to a righteous order of things in
history. His divine violence, conceived as “a pure means,” wasn’t some-
thing intrinsically connected with violence, or to put it neutrally, the
imposition of force. 1 Reading of Georges Sorel, a self-taught erudite syn-
dicalist thinker who strongly influenced both fascist and socialist doc-
trine, is only one of the components of the eclectic cocktail of Benjamin’s
political thought, and it provided the idea of the general workers’ strike
49
50 Chapter 1

as the eschatological figure ending politics as we know it. If we put aside

the influence of decisionistic theories of sovereignty and exception de-
vised by Carl Schmitt, to whom we return in a moment, the other compo-
nent probably came from Judaist political theology: when Benjamin em-
barked to “envision a space for ethics wholly apart from the violence
(Gewalt) that sustains propertied political order,” he found inspiration in
“Jewish ideas about justice and the community of the righteous” (Lesch
2014, 218). It was the theological concept of Shekhinah, a Hebrew concept
similar to Greek concept of parousia, denoting divine presence or spiritual
tranquility (sometimes, however, paired with considerably violent de-
vouring flames), associated with “the brightness of His coming” in
contrast to the earthly iniquity or anomia (2 Thess. 2:7–8).
The important point of this utopian critique, a radical discourse of
antipolitics, is that something is rotten in the political managing of vio-
lence. 2 The state is a usurper assuming the role of a mortal god (Lesch
2014, 228). It is an instance of mythic violence playing a part in the histor-
ical accumulation of injustices that seeks to be redeemed in mystical his-
torical eschatologies such as Benjamin’s. The death penalty is an ancient
institution of violence placed at the very heart of the political order. In
Derrida’s lengthy interpretation, which emphasizes the “polysemic mo-
bility” of Benjamin’s text, the purpose of the death penalty is to “testify
that law is a violence contrary to nature” (Derrida 2002, 276). In other
words, if the state cannot kill you, it is not dangerous; it is not really
serious, at least according to the Schmittian line of reasoning that I
present. With the death penalty, it is state power, its very power to pun-
ish, that is at stake.
The death penalty thus displays the extreme nature of law. Historical-
ly, law is not established as an idealistic pact between free and autono-
mous agents establishing civil society. It is established by violence. Or-
ders are erected in wars and revolutions, preserved by violence, and
overthrown by acts counterviolence, instituting new orders, and so on.
The history of politics, for Benjamin, exemplifies such dialectics, which is
hard to break (McLoughlin 2013, 512). It is intimately associated with the
mythology of bloody sacrificial power. The hubris of fertile Niobe who
boasts of her power and fortune is punished by the gods, Apollo and
Artemis, who shoot down her numerous children and establish a boun-
dary (as in the mentioned etymology of the hudud in Islam), while she
turns into a crying stone. It is a paradigmatic act of mythical violence that
then calls for redemption. Simon Critchley offers an instructive alterna-
tive example from Aeschylus’s Eumenides; at least in that rendition—an
alternate deus ex machina take is offered in the Euripides version—it is
the final part of the story of Orestes, who has gone mad after killing his
mother and her lover, who killed his father. Against the Furies and their
demand for revenge, as symbolic agents of more destructive private pun-
ishment, the wise goddess Athena institutes public justice and entrusts
 Death Penalty 51

power to Orestes “for the simple reason that Athena honours the male
principle in all things, having sprung directly from the head of Zeus
without the mediation of the womb,” and Critchley can conclude “Trage-
dy is mythic violence that attempts to break the repetitive cycle of family
slaughter” (Critchley 2009). The juxtaposition of two m’s (contained in
mythical and messianic) calls for a simple question: can the messianic
break the vicious circle of the mythical? The obscurity of the eschatologi-
cal mystique resembles the structure of a nebulous dream more than a
blueprint of constructive politics. Divine violence, offered against the
mythical violence bastardized with law, exemplified by such institutes as
the death penalty, in conclusion of this short interpretation suggests
something like the quality of a pure revolution purged of its fallen
human violence. In this fallen and melancholy revolutionism, the idea
of divine violence serves simultaneously as a kind of final exasperation
at the very possibility of a new ideal political order, which can only
make sense in the context of a residual idealization of the political—
something like the Platonic ideal of the political, or the politics of a pre-
fall Eden. It is, finally, an expression both of political exhaustion and of
a still retained hope of what politics could be like—if human beings,
perhaps, did not have to make it? (Jennings 2011, 35)
The point is more profane than is perhaps suggested by the far-reach-
ing sweeps in the philosophy of history, which want to quit its monoto-
nous dialectics with the projections of “the coming community” (Agam-
ben 1993). As was pointed out in the introduction, one plausible perspec-
tive on the state is that it wants to own conflicts. It might be said that the
private agents that are deprived of the right to administer violence by
Benjamin were turned into agents of divine force. We have suggested
that the distinction between the mythical and the messianic is not so clear
after all: it depends on who does the justification. It is not surprising that
the defense of the death penalty, as well as the attacks on it, are intimate-
ly connected with legitimizations of the political order itself and the ideas
of the very nature of political. If probing the extremes of punishment
should start with the extreme punishment in abstracto, the idea of this
chapter is to take a peek at the long tradition that justifies death penalty
in political terms. Obviously, there are several classical genres I am dis-
carding here.
Academic industry built around capital punishment—perhaps mostly
because it still exists in the United States and in some other interesting
countries such as Japan, which also qualifies as a postindustrial devel-
oped state—is almost impossible to follow in its entirety and hard to
structure even on the elementary level. First, there is a simple normative
framework that discusses the rationality of capital punishment according
to several predictable criteria. Its retributive function is discussed. The
question is, does it serve justice in the cases of horrid crimes, or does it
52 Chapter 1

merit the disdainful label of mere revenge making community sink down
to the level of violent criminal? Furthermore, while its effect on the level
of special prevention is pretty obvious, since it—if we exclude supernatu-
ral occurrences—quite conclusively incapacitates an offender to do any-
thing more on this world, its effect on the level of general prevention is
more controversial. However, unlike the former normative criteria of its
retributive fairness that eschew empirical conundrums of corroboration
or refutation—since there is no clear-cut Popperian black swan for senti-
ments of justice—this one is prone to empirical reason, at least in the
realm of the academic discussion. Comparative studies offer habitual ref-
utations, claiming that brutal punishments are more easily associated
with the settings of brutal crimes than any ostensible crime reduction,
while controversial corroborations try to exclude possible interfering fac-
tors and attempt to prove that society is actually defended by the means
of death penalty. They thus ignite academic discussions and controver-
sies in the realm of methodology and politics (Ehrlich 1975; Bailey 1975,
416). 3 Finally, sometimes it goes down to the practical arguments of bi-
ases and mistakes that are obviously irremediable in this area, or to quite
base arguments that morbidly play on finances—unlike imprisoned peo-
ple, the dead criminals do not represent a cost to society when dead
(although, contrary to some intuitions, the “due” process of state killing
them may be costly). Such an economy, however, seems quite narrow, at
least in the ambient of contemporary Western sensibilities, as it is shown
in Werner Herzog’s documentary Into the Abyss, built around the execu-
tion of Michael Perry in Texas, where the former executioner emotionally
crumbles as he narrates the number of deaths he had administered as an
authorized agent of execution.
Second, this already suggests how a normative genre can be further
contextualized into a more realistic setting by analyzing high judicial
reasoning that plays on various arguments in the concrete setting of a
constitutional order. Deterrence, retribution, incapacitation, mistakes,
and race are categories under which one can find pro and contra argu-
ments for the death penalty in the United States (Latzer 2002). One pos-
sible distinction is also between abolitionist literature that argues against
death penalty on high moral grounds in contrast to a more realistic or
policy-oriented approach that plays on devising and implementing alter-
natives in concrete settings, taking in account the perspective of the vic-
tims and the alternatives such as life imprisonment or long prison sen-
tences (Hodgkinson 2005).
Third, contrary to normative discussions and studies that offer practi-
cal reasoning on various levels, there are explanatory studies that ap-
proach the phenomenon in descriptive and causal terms: how and why it
has developed historically and why it, contrary to progressive expecta-
tions, survives today in the United States as “the only capital punishment
system still in use in the West” (Garland 2010, 13; see also Bedau 1997). It
 Death Penalty 53

is a genre that announces the historical curiosities tackled in the next

chapter: dissections could be seen as post mortem torture; part of the
common sense, when the Western world was more enchanted in terms of
Christian faith, was that the death penalty not only serves the functions
of retribution and deterrence but also of penitence, that is, that it serves to
“facilitate repentance” (Banner 2003, 23, 76–80).
I instead present the classical political theories of punishment to make
a point about some things they have in common. For the purposes of
structuring the field of discussion, as well as for the interpretive guidance
on some significant points, I partially relied on an excellent study written
in French by Daniela Lapenna (2011). She gives a nice overview of the
nexus between political theory and the death penalty, explaining the lat-
ter as a part of the political theology of the state. One prior interpretive
point is especially important and it brings the religious motive of repen-
tance into the field of historical political theory of death penalty. Aside
from the retributive understanding of death penalty as a just indemnity
for the crime, which is espoused by the retributive theorists, and its pre-
ventive rationalization as at least theoretical and commonsense deterrent,
before the checks and balances of statistics and empirical social science,
the interesting and paradoxical figure of legitimization of capital punish-
ment forefronted in Lapenna’s study is correction.
In classical works, which provide a rich illustration of Schmitt’s dic-
tum that concepts of political theory are (nothing but) secularized theo-
logical concepts (Schmitt 1985), capital punishment is prescribed as a
kind of catharsis that reaffirms the higher self of the criminal who entered
into the social contract and breached it, compromising his imputed will
of the citizen or loyal subject. This strange application of rehabilitation of
the self, amply elaborated by Lapenna, is in the field of annihilation of-
fered by extreme punishment based on the distinction between lower
empirical and the higher or virtual political self. This person is interpel-
lated theoretically, as in Althusser’s conception of ideology that compels
one to enter into his or hers social role, proving that the discussion about
the death penalty is often a discussion on the seriousness of the political
religion and its primacy in relation to expandable individual subject. That
said, the treatment and choice of the authors is mine. I include Marx, who
is curiously excluded in Lapenna. On the other hand, although it has
some presence in this book, in this chapter I exclude René Girard’s mi-
metics of violence and systematic discussion about the anthropology of
the sacrificial goat (bouc emmissaire), as well as the psychoanalysis of
death penalty, ritual sacrifice, and original crime: these approaches are
highly interesting and offer an alternative angle on the closed circuits of
political theory which then appear as possible sublimations and second-
order ideological commentaries. Some of it appears in the end and in the
following chapters, but for the purposes of the here-attempted recon-
struction, it is not so important, to put it into Foucauldian lingo, to soak
54 Chapter 1

death with desire. 4 I also try to omit the too conspicuous normative over-
tones present in Lapenna, inspired mostly by Derrida (2012, 2015), since
this book is conceived neither as an anarchistic treatise seeking to decon-
struct politics nor an abolitionist pamphlet arguing prescriptively within
the discourse of the universal human rights. 5 After a critical discussion of
the some of the most relevant classical accounts of the death penalty, as
the ultimate punishment by the political authority, I filter these dis-
courses through two fictional tests that I see as reasonably enticing and
then sum up the argument in the conclusion of the chapter, while expos-
ing it to some more contemporary empirical challenges along the way.

DECISION AND DEATH: POLITICAL THEOLOGY OF CAPITAL

PUNISHMENT

A useful—if a bit unusual—initial distinction in the political theory of the

death penalty can be made between the positions of decisionists and
contractarians. The decisionists do not have a problem with extreme pun-
ishment because the death penalty is elevated to an almost ontological
status, equated with politics itself. If politics is, death on its behalf is as
well. It is a natural “means” to maintain political order, demanding obe-
dience from its fearful subjects, aside from any empirical check of its
effectiveness and efficacy on utilitarian grounds. As in Benjamin’s story
of Niobe, or in the even more familiar case of poor Antigone who chose
family allegiances over political order, the death penalty is a natural in-
strument to establish and preserve the state. One cannot be a decisionist
if one accepts the prior decisions to exclude extreme decisions. In Carl
Schmitt’s interpretation, a sovereign is a figure who decides on the state
of exception. A serious order has friends and enemies—the distinction
between the two is, again, the sovereign’s, as well as the decision to
suspend the law to protect it—and enemies often have to be killed to
preserve one’s values and way of life in a dangerous world. Since Schmitt
indeed offers a species of political anthropology in his writings, it is not
strange that David Garland’s simple but acute quasi-anthropological ob-
servation can serve to sum up one of the important tenets of the decision-
istic discourse on death penalty: “Attitudes to death are heavily condi-
tioned by perspectives and relationships: the deaths of friends and the
deaths of enemies affect us very differently” (Garland 2010, 302).
The high political executive has sovereign power, duty and right to
decide on life and death. The point is contained in the familiar logical
figure of argumentum a fortiori: compared to war as a high level existential
conflict of the collectives with the potential of mutual political or existen-
tial annihilation, the death penalty is only a small-scale operation that
almost goes without saying. It is thus not usually elaborately theorized as
such, at least not in Schmitt’s major works, because it is perfectly logical
 Death Penalty 55

for the decisionist. To borrow from Schmitt’s reactionary predecessor

Cortés, the death penalty is essential, especially in the case of political
crimes such as treason or revolutionary activity, which are most danger-
ous to the existence of the political order. What Franco and similar histor-
ical sovereigns did in practice—they administered death and grace, de-
pending on the politics of friends and enemies—is elevated to the theo-
retical level without the special need to justify extreme punishment on
vaguely utilitarian grounds. The death penalty is a historical prerogative
of the sovereign at the expense of the individual who, historically speak-
ing, was only relatively recently endowed with a set of inalienable rights.
Leo Strauss’s interpretation of Schmitt hits the spot (see Meier 1995).
Liberalism is political in wider Schmittian sense—it is one of the political
concepts that are per definitionem polemical and, as Schmitt’s own case
exemplifies, it certainly has political enemies—but its “depoliticizations”
are not Schmitt’s preferred option, since it lacks serious existential com-
mitment advocated by Schmitt. Instead of acceptance of death, liberalism
offers the politics of divisions and partitions: of private fun, enjoyment,
and marketplace of needs as the method of coordination. Once upon a
time, Schmitt states, the warrior peoples defeated (and plundered) the
trading peoples, but now it is exactly the opposite. With an air of nostal-
gia, Schmitt writes of the times when the political was organized through
the system of states (Schmitt 1932, 10; 2006, 39; see also Schwab 2007,
10–11). Although in the end he doesn’t seem sure that the state should be
discarded too hastily (Schmitt 1979, 40), the prime time of the states is in
his opinion gone, but as long as the state or, more generally, politics, is
taken seriously, death is something to be affirmed politically. Unlike legal
theorists such as Hans Kelsen, who thought that the point of law is to
constrain the political, Schmitt unleashes it theoretically in the state of
exception. A sovereign should administer death when necessary, and
protection of rights by the law is suspended when the life and death is in
question. Similarly to Heidegger (see Wolin 2003, 173–202), the general
tone of his theories was adjusted to Nazism, which he embraced as the
formal member endowed with the NSDAP-Parteibuch, and it acquired an
anti-Judaist attire. Tensions and problems in the relationship between the
Catholic conservative and the extremist street “trash” (Pöbel) in power
had its days in Schmitt, but the early support was wholehearted. Schmitt
celebrated the 1935 Nuremberg laws; in contrast to Jewish abstract laws,
he wrote, these were concrete and organic; he understood them as noth-
ing less than—in a literal phrase that Hayek later popularized with an
ideologically opposite liberal content—“the constitution of freedom” (Die
Verfassung der Freiheit) that draws the right distinction between Freund
and Feind (Schmitt 1935).
The point of this politico-theoretical elaboration paired with bits of
historical context is easily applied to the question of the death penalty: it
is a simple instrument of the political at the disposition of the decisionis-
56 Chapter 1

tic sovereign who protects the order. As one of the unsympathetic ob-
servers of Schmitt’s life and work remarked, in Schmitt, the classical tenet
of criminal law is perverted in its ultimate consequences. It is not Nulla
poena sine lege, but Nullum crimen sine poena (Darnstädt 2008, 34). The right
to punish is essential to sovereignty and it constitutes the law and the
crime. If Schmitt’s major works lack the precise affirmation, there is no
problem in finding it few generations earlier in the decisionist camp. The
classical decisionistic vindication of the death penalty is provided by
Cortés, who arguably influenced Schmitt. Schmitt interpreted Cortés at
safe ironic distance—he is not venerated as a teacher but analyzed as an
object within the field of history of political ideas—but Cortés nonethe-
less informed Schmitt’s discourse at a more fundamental level of implicit
values and conceptual structures that emerges on the margins and in
connotations, that is, in the important parts of one’s work.
For Cortés, a conservative enemy of the French Revolution, with the
Enlightenment’s overthrow of tradition and its political consequences,
the death penalty was perhaps at the heart of political struggle of his
days, as the affirmation or religious order of things he understood as the
right one. One of his enemies is liberalism, the ideology of human rights
and negative freedoms codified in constitutions. Negative liberty is for
Cortés a sheer catastrophe. Socialism is not burdened with that concept,
and at least it proposes secular faith and ideological content to which
individuals can be sacrificed at the altar of history, but it is also dead
wrong. The problem of both political ideologies is that they share the
false belief that the human being is good. This belief is a shock for Cortés,
who believes in the original sin. Who told humankind that they are good?
Where is the proof for such an obviously silly idea? Instead of that false
start, Cortés builds his edifice of death penalty on theological grounds.
“The Catholic explanation of evil” offers an ontology that is more in tune
with politics of death (Cortés 2010, 39). It is a somber worldview of pain
where “all men born suffer from their birth to their death”; for Cortés,
“Pain is the inseparable companion of life in this obscure valley, filled
with our sighs, deafened with our lamentations, and moistened with our
tears. Every man is a suffering being, and everything not painful is
strange to him” (Cortés 2010, 74).
Within this bleak framework, abolition of the death penalty is not only
undesirable, it is also a fundamental theological inconsistency, a destruc-
tion of the essential tenet of order, a unique scandal in the political ontol-
ogy of the suffering subject. On the surface, its theological legitimatiza-
tion is paired with Humean naturalistic fallacy: ought, at least logically,
cannot be derived from is. The position is strengthened with the scare of
chaos that allegedly appeared wherever fear of death has been aban-
doned as a political means of preservation of an earthly order:
 Death Penalty 57

Whence follow, not only the legitimacy, but also the necessity and
convenience, of the penalty of death. The universality of its institution
proves the universality of the belief of the human race in the purifying
efficacy of blood, shed in a certain way, and in its expiatory virtue
when it is shed in that way. Without shedding of blood there is no remission
(Heb. 9:22). Without the blood shed by the Redeemer, the common
debt the human race in Adam contracted with God would never have
been extinguished. Wherever the penalty of death has been abolished,
society has distilled blood from all its pores. (Cortés 2010, 97)
However, not only a narrow political theology is offered. The Marqués de
Valdegamas portrays the horrors of greater evil and historical disorder
that will ensue with the softening of the political decisionism, the courage
to have the will to decide on the political order and punish those who
challenge it. His logic is that order starts crumbling when it loses the
political determination proved by its will to use the death penalty for
political crimes. And even worse than abolishing the death penalty for
political crimes is—a move that follows in his logic—to abolish it for
crimes that do not aim at order as such. Cortés poses a rhetorical ques-
tion: “How far would its ravages reach if the suppression were extended
to common crimes?” (Cortés 2010, 97). In the abolition of the death penal-
ty—and we might ascribe such logic to Schmitt without much run-
abouts—he sees “a monstrous inconsistency,” the abolition of any pos-
sibility of the political order itself and the descent to chaos. If a sovereign,
represented by his agents, is unable to be true and just in adjudication of
political crimes, he is unable to be so in any crime. Consequently, there is
no crime since there is neither truth nor certainty in these matters. Any
order is as good as any other:
If the suppression of the penalty of death in political crimes is founded
on the negation of political crime, and this negation on the fallibility of
the State in these matters, it is clear that every system of penalty falls to
the ground; for fallibility in political things supposes fallibility in all
moral things, and fallibility in the one and in the other carries with it
the radical incompetence of the State to qualify any human action as a
crime. Well, now, as this fallibility is a fact, it follows that in this matter
of penalty all governments are incompetent, because all are fallible.
(Cortés 2010, 97)
Decisionists, on the other hand, are not burdened by fallibility. The
problem of impossibility of restoration after the unjust capital punish-
ment is replaced by political intuition that the game would not be serious
without death and that, perhaps, after the death of the heavenly sove-
reign, the earthly one should be preserved with his full powers. Against
the spirit of times, their politics of the death penalty rests on the medie-
val, and it is not contextually inappropriate to quote John of Salisbury,
political theorist of the day, who among the prince’s attributes listed his
ability to “shed blood without guilt” (Sheehan 2003, 12). For a political
58 Chapter 1

order that seeks to preserve itself and doesn’t see the life of a political
subject in liberal terms but as an expandable means in the perspective of
raison d’état, the death penalty is a traditional political choice that pre-
cedes any morality that would pay serious attention to individual life.
Catholicism is important for both political thinkers whose positions
were sketched here. We might say that since death and mercy go hand in
hand in that religion, it is no surprise that by operations of political theol-
ogy they easily become political death and pardon in terms of political
order. The significant difference, however, between the earthly political
sovereign and the Christological lion figure from The Chronicles of Narnia
seems to be that the first one distributes death and mercy to his subjects,
while the latter more humbly accepts his own death to expiate the sub-
jects. The first logic is selfish and the second altruistic. Furthermore, polit-
ical decisionism bringing together death and the political can certainly go
in hand with various religious discourses (more or less all of them have
to do with death and most of them with mercy), as well as with the
secular faiths and conceptions of order. The specific content of the ideolo-
gy is at this point not important beyond that far reaching but ultimately
simple fact of keeping death, fear, and subordination in the game of
politics and punishment. The religious component of decisionism in the
narrow sense of a specific doctrine that influenced the worldview of the
presented authors should thus not be overstretched.
A fictional example can serve to round up the discussion of death and
decision, and offer a preface for the following sections. It provides both
an additional reference to Critchley’s interest in classics and to operations
of mass evil and the discussions of it offered in the introductory chapter.
This neo-Oresteia is anchored in the modern history where angry female
furies persecute the antiquely incestuous killer of his mother and step-
father. Jonathan Littell’s The Kindly Ones is an impressive chunk of histor-
ical world war fiction, massively awarded and sold in France, following
the destiny of a French-speaking SS officer; it is abundant with essayistic
fill-ins featuring intellectual discussions of the boudoir, of which many
are interesting for this treatise but one seems to stand out. The part Me-
nuet (en rondeaux), as we reach the end of the saga, has the novel’s protag-
onist, a well-educated aristocrat Max Aue, discuss some important mat-
ters with Adolf Eichmann himself (Littell 2006, 806–15). The conversation
takes place at Eichmann’s house, where his wife, Vera, une cuisinière hors
pair, prepared delicious rôti avec une sauce aux baies et des haricots verts,
while fictional Eichmann drinks too much French wine and becomes
overly sentimental in the end. The point of discussion is pretty dry how-
ever: The Critique of Practical Reason and l’Impératif kantien interest Eich-
mann, who wants to discuss them a bit.
At the Nazi dinner, this well-known uravnilovka of puritan egalitarian
morality where individual maxims are checked by their universalizing
potential, turns out to be miraculously compatible with notorious
 Death Penalty 59

Führerprinzip. The latter is, essentially, a combination of a fundamental

rule that words of the leader have the force of law (Führerworte haben
Gesetzeskraft) and a practical necessity of its application; since the Fuhrer
is omnipotent but not omnipresent, the obligatory instruction is to work
in the manner as if the Führer knew of your action and would have
approved it. The principle is thus understood as a kind of Nazi reflection,
not as a blind obedience. To be free is to serve, to be a vassal: this German
traditional (feudal) saying is invoked (Frei sein ist Knecht sein), and the
Führer is, not surprisingly, the biggest servant of his people, the first
servant serving the whole nation. This nation is, of course, conceived as
organic nation, a Volk contrasted to “a completely mythical supranational
law,” far from Kant even if his anti-Semitism is related to the conversa-
tion. The solution is found in the boundary of the organic community
that is drawn by the sovereign: the principle “is not applicable outside of
the Volk” (Littell 2006, 810). It is a situation where the will of one becomes
everyone’s will, a quite thorough perversion of Rousseau’s principles,
distilled in an organic leader, and then spread across the organic national
body. Although this all may call for a Marxian critique of ideology, the
point on the death penalty is made within the specific version of the
discourse of decisionism. The problem is that the moral imperative has a
hard standing during the war and the state of exception “justified by the
danger”: “the Kantian Imperative is suspended because it is understand-
able that the things we want to do to the enemy, we don’t want the
enemy to do to us, and therefore what we do cannot serve as the basis of
a general law” (Littell 2006, 808–9). Analogously, in the case of death
penalty, one might say that the killer has excluded himself from the peo-
ple as an enemy. The question of death is not framed as a problem of law
and contract but as a matter of politics and decisions on friends and
enemies of a specific political order.
And Eichmann, the administrator of—in absolute numbers—the
biggest collective punishment of death in history for those outside of
Volk, a historical figure that seeks a Kantian justification while eating
roast? Within the discourse of the tragic protagonist of Littell’s novel, he
turns out as neither enemy of humankind nor “an incarnation of banality
of evil, a robot without soul and face,” but a Nazi careerist manager, un
bureaucrate de grand talent with a limited understanding of the wider pic-
ture, a cadre moyen, zealous and diligent in performing his tasks. During
the dinner he shows the secret reports of the suppression of the Warsaw
ghetto where the starved out Jews “fought like wolves”: “Imagine a simi-
lar revolt in a concentration camp! Unthinkable.” The reader may rest
assured: Eichmann will reappear in the book, while Kantian morality is
in Littell’s novel left cynically described as “useful fiction” for some pur-
poses, but hardly compatible with an organic understanding of the peo-
ple “anchored in historical reality” and, in this context, the decisionistic
paradigm of the death penalty. “And the Kantian Imperative? To be hon-
60 Chapter 1

est, I didn’t know much about it, I only told some nonsense to that poor
Eichmann,” recounts Aue (Littell 2006, 812, 815, 845).

CONTRACT AND DEATH: CAPITAL PUNISHMENT IN POLITICAL

CONTRACTARIANISM

While particular theories offer specific mixtures and blends of argu-

ments, the second genre of political theory of the death penalty that can
be analytically discerned for our purposes builds legitimacy neither from
the organic nation nor from moral transcendence, but from autonomous
individuals closing a social contract and empowering state agents to do
their job of diminishing the anarchy of the state of nature and the multi-
tude of self-empowering agents of violence and punishment. This per-
spective operates on deontological grounds of mutual rights and duties.
Within or against that framework, the argument for the death penalty is
made on consequentialist grounds of usefulness of punishment for some
goals, usually some kind of eudaimonistic calculus of sum of private
happiness, or a loftier public good, that can, at least theoretically, justify
capital punishment. These specific approaches are discussed in the fol-
lowing sections. Here, the important thing to note is that, like decision-
ism, contractarianism builds its framework around death, but it requires
stricter justification to impose it. It takes the political seriously, but it also
takes the law and rights seriously. Death not only is, but it has to be
justified beyond mere political decision: in terms of rights, means and
ends. And these operations might fail, consequently opening the door to
abolitionism. But for the state to punish, it first has to be constituted and
legitimized together with its faculties of punishment. That is where
Hobbes and Locke come in. They were the champions of seventeenth-
century Anglo-Saxon political thought and contractarian theory of state
and punishment. They were born during the Age of Reason paradoxical-
ly combined with the civil wars when the state monopoly of violence was
in question. The state’s right to punish, by death, has to be established
before it can be further strengthened or disputed, and deconstructed in
centuries to come.
To offer a narrative of the state as contract at first may seem as a cheap
ideology obscuring its real functioning. Historically, there was no such
contract and justifying someone’s death by such inexistent contract de-
vised by theorists legitimating political power seems highly hypocritical.
Furthermore, this genre of abstract theorizing ignores questions of the
identities and exact boundaries of a community, which practically influ-
ence punishments, and of the social differences and mechanisms of state
power and punishment. In other words, however one interprets Morris-
sey’s lyrics of Irish Blood, English Heart and his dream/invitation to “spit
upon the name of Oliver Cromwell,” contract theory seems to ignore
 Death Penalty 61

most of the problematic issues tackled by theories of nationalism and

theories of power. It speaks of the contract no one made, since the orders
were erected and fallen in violence more often than in evolutionary re-
forms and slow degradation, all of which eschew the fixed form of
contract. But, all objections aside, the theory of contract still offers an
interesting discourse on punishment since it tries to build a theoretical
construction around the real problems that permeate governing and hu-
man conduct in a political society. It is a legitimizing figure about state
and punishment one could reject or accept, as if the contract on the nature
and rules of political order were made, which makes power bearable or
strives to direct it in such direction in a democratic or quasi-democratic
situation.
All political theories are contextual, probably predestined to lose their
power and significance with the passage of time, but in making the mini-
mal choice that still rings with some generality and relevance in discuss-
ing politics, punishment and death, some of those theories can still be
singled out. If we ignore Bodin (who spoke of sovereign power in abso-
lute terms, as la puissance absolue et perpétuelle of governing public affairs,
but was still much into witchcraft) or Machiavelli (who was still coping
with the problems of borders and discussed tactics of how to acquire and
keep power), the modern sovereign state was most clearly theoretically
elaborated by Hobbes. Locke, whose liberalism was of a bit different sort
and historically informed the American Constitution, tried to make it less
encompassing and more pragmatic. Hobbes and Locke theorized the
death penalty as the right of the sovereign, forming the basis for further
discussions. Contractarians saw it as empirical means that is judged as
any other, on the basis of its efficacy for preserving order or achieving
some other goal. Rousseau tried to make the story of the state more
democratic, establishing its logic outside of utilitarian reason of private
desires. The proto-romantic Swiss-born philosopher developed the basis
for another political theology of sovereignty, where sovereignty is self-
imposed on each and every one of the subjects, who together authorize
punishment as a means to curb their private wills or chastise those, but
especially themselves, who forgot the higher political wills of the parties
of the contract. This totalizing construction and its developments then
provides material for the critiques made by the abolitionists in the latter
sections.
Contrary to the stereotype of him as one-sided authoritarian apologist
of the almighty sovereign, the operation of authorizing the death penalty
is not at all simple for Hobbes, although his simple and predictive catego-
ry building exercises at first suggest otherwise. In the twenty-eighth
chapter of the Leviathan, he writes “of punishments and rewards.” A
robust definition is offered, excluding “punishment divine” outside of
political theory, giving the public authority the right to punish crime,
while private agents have an option to disobey, thus categorizing them-
62 Chapter 1

selves as enemies, their revolt calling for a sovereign’s revenge: “A pun-

ishment is an evil inflicted by public authority on him that hath done or
omitted that which is judged by the same authority to be a transgression
of the law, to the end that the will of men may thereby the better be
disposed to obedience” (Hobbes 1651, 190). An authority judges and im-
poses sanctions in order to achieve obedience on the level of general
prevention, but with the precondition of transgression by the individual
subject of the rule that forbids an act or orders it. Gratuitous acts of
sovereign violence are “acts of hostility”; its function is to make people
obey the law, and acts of violence toward an enemy are not constrained
by the law, appearing in the open game of power. Likewise, those who
work against established authority and “deliberately deny” sovereign
power have exposed them to political revenge; “in declared hostility all
infliction of evil is lawful” and “in denying subjection,” the rebellious
subject denying punishment by law “suffers as an enemy of the Com-
monwealth” (Hobbes 1651, 192). The death penalty is perfectly normal in
such discursive definition of the situation dealing with the seventeenth-
century civil wars on British soil, where torture was still standard. That
makes Hobbes enter into some scholastic details discussing the botched
executions of the day: “For if upon the infliction of a punishment death
follow, not in the intention of the inflicter, the punishment is not to be
esteemed capital, though the harm prove mortal by an accident not to be
foreseen; in which case death is not inflicted, but hastened” (Hobbes
1651, 193).
The discourse of authorization of the sovereign makes categorical dis-
tinctions between sins as moral categories and wars and rebellions as
political categories, where the functioning of legal order does not apply,
simply giving free hands to the stronger. The crime and punishment are
in between and the potent sovereign is authorized to punish breaches of
order if he obeys the judicial procedure since “no man is supposed to be
punished before he be judicially heard and declared guilty” (Hobbes
1651, 194). It sounds simple but it is not so. The theoretical structure is
contextualized with practical reasoning of a cynical type. There is a logi-
cally prior problem Hobbes poses before elaborating the presented defi-
nitions. There is such a thing as natural law, working in the reason of all
sentient beings that are, according to Hobbes, more or less rational and
selfish. Naturally, they have the right to preserve themselves. It is ex-
pected that they will do it to preserve their skins, but a sovereign is, alas,
stronger in practice. It is some kind of catch-22 as in Heller’s novel: air-
men who are insane—as Doc Daneeka explains to Yossarian, a pilot hop-
ing to get relieved from combat duties—have to be grounded but in order
to be grounded they have to ask to be grounded on the plea of insanity,
which in consequence means that they are not insane; thus no airmen can
be grounded and, as in one amusing primer in logics analyzing said
catch, the conclusion is that “the argument can be valid, but it cannot be
 Death Penalty 63

sound” (Haight 1999, 426). Similarly, the state has to punish a subject
who breaches the law to “preserve order,” which is its function for
Hobbes, with death if the transgression is serious enough, but it cannot
do so consensually, as Hobbes lucidly observes, since everyone has a
right to self-defense according to natural law.
Theoretical antinomy between the sovereign power and natural law
seems insurmountable because that “right to Punishing,” a part of the
wider state of nature package where “every man had a right to every
thing, and to do whatsoever he thought necessary to his own preserva-
tion,” is not exactly transferred as an authorization to impose death in the
manner of later more demanding social contract theories. It is worth
quoting Hobbes’s convoluted and repetitive formulation struggling with
the problem: “For the subjects did not give the sovereign that right; but
only, in laying down theirs, strengthened him to use his own, as he
should think fit for the preservation of them all: so that it was not given,
but left to him, and to him only”—adding a caveat in brackets: “excepting
the limits set him by natural law” (Hobbes 1651, 191). 6 Theoretical im-
passe is, as usual, solved practically. Those who actually disobey set
themselves into a state of rebellion—that is, in a state of war with the
state—and are put to death as enemies not as subjects, which is practical-
ly more or less irrelevant. The governors of the commonwealth solve the
difficulty as the stronger party. And if the sovereign isn’t such a party,
that only means he cannot guarantee peace and safety and, as the law of
the jungle works both ways, the new sovereign is to be erected who has
same right of the sword. And the latter process is pretty inclusive in
Hobbes, tending to be collective. To continue our discussions from the
former chapter, Hobbes understands it in a similar manner to the Nazi
occupation authorities during the Second World War or the Serbian
prime minister Vučić who, in his younger radical years, exclaimed that
for one dead Serb, Serbs shall kill 100 Muslims, which was highlighted by
the protesters in Srebrenica at the twentieth anniversary of the localized
mini-genocide. But unlike Ratko Mladić’s forces, which set a very low
age threshold for male Muslim population in the area in performing exe-
cutions in the summer of 1995, for Hobbes it was transgenerational,
bringing him closer to divine punishment in the biblical sense of God
punishing generations for the sins of their forefathers (see Hobbes 1651,
195).
There is one more place in Leviathan relevant to this discussion: it
shows how the right to apply capital punishment is limited but compen-
sated by the sovereign’s high discretionary powers. Hobbes discusses a
biblical anecdote (2 Sam. 11) to make a theoretical point about the nature
of sovereign power. Looking from the roof of his palace, King David falls
for Bathsheba, “the daughter of the oath.” He morally lapses and de-
prives the ruling function of dignity by impregnating her. Possible sexual
harassment aside, his chief misuse of power for private ends consists of
64 Chapter 1

this: his loyal subject Uriah the Hittite, who is accidentally also Bathshe-
ba’s husband, does not even want to sleep with his wife in order to
preserve his energy, as some sportsmen do preparing for a crucial game,
so his lawful wife’s pregnancy with the king before the age of DNA
testing cannot be covered up. Unable to account for the cuckoo’s egg,
David decides to abuse his sovereign power. Joab, David’s military com-
mander, puts Uriah in the deadly heat of battle by order of the king. To
make the story more ludicrous, loyal Uriah himself carries the sealed
letter that also seals his destiny to his military commander. Uriah is killed
and Bathsheba becomes David’s wife, later giving birth to wise Solomon.
In chapter 21, Hobbes sees this archetypal story as dealing with the case
of de facto death penalty: “a Subject may be put to death, by the com-
mand of the sovereign power; and yet neither do the other wrong”
(Hobbes 1651, 131). He understands the episode as a case of:
a sovereign prince that putteth to death an innocent subject. For though
the action be against the law of nature, as being contrary to equity (as
was the killing of Uriah by David); yet it was not an injury to Uriah, but
to God. Not to Uriah, because the right to do what he pleased was
given him by Uriah himself; and yet to God, because David was God’s
subject and prohibited all iniquity by the law of nature. Which distinc-
tion, David himself, when he repented the fact, evidently confirmed,
saying, “To thee only have I sinned.” (Hobbes 1651, 131)
To sum up, I believe this case is not a legitimization of death penalty as
punishment but I think it illustrates the wider problem of a sovereign’s
wide political discretion to dispense with the rights of his subjects in
performing political operations, even if for completely immoral private
interests and simpler passions. It is not that the innocent can be punished
because, by definition, it is not punishment but an “act of hostility” when
no crime is punished (Yates 2012, 132). Punishment as such is a part of
contract: “Ownership of punishment arises through the subject’s author-
ization of the sovereign to punish him for transgressing the law” (Yates
2012, 129). When the subject acts against his own authorization and loses
the protection of law, he can be angry at his own foolishness but not at
the sovereign. But the point is that whenever this relation of punishment
is called into question, and in many other cases beyond punishment in a
narrower sense, such as the one recounted, arising from sovereign’s pow-
ers above the law (sovereign is after all legibus solutus, free to make his
own laws), the sovereign may take life, working outside the law simply
because he is stronger. Hobbes has it horizontal in a way, but the vertical
structure of power kind of biases the outcome. This naturally brings up
Locke’s objection that wolves or bears are more dangerous than foxes,
begging the question why should subjects put their heads into mouths of
almost as unpredictable but larger and generally more fatal beasts than
their peers in the state of nature? David’s raptures naturally lead to the
 Death Penalty 65

institution of a new commonwealth, perhaps on some other principles.

The founding moment of American polity in this historical dialectics is
Lockean. Ironically, it is the philosophy of antipunishment, putting “self-
evident” natural rights against tyrannies, oppressions, and cruel and un-
usual punishments of the bygone days. But what does Locke actually say
on punishment?
Locke already has the right to punish working in the natural state,
including the right to impose the death penalty upon a malignant perpe-
trator. Political power in The Second Treatise on Government is conceptual-
ized as a trust. Preexistent right to punish is simply transferred to the
sovereign. There is no theoretical problem in Locke’s framework, which
perhaps begs the question of legitimacy of capital punishment, posed by
the stubborn spirits inimical to the concept. If politics is a better manage-
ment of what is naturally, or what would be if possessive individualism
was a natural state, and the right to protect life and limb up to the death
of the attacker or transgressor is natural, then the death penalty is also a
natural means of protection elevated to the political level from the natu-
ral basis. Capital punishment is entrusted to a higher agency in order to
divide labor and relieve individuals of such costly and precarious admin-
istration, as if Locke’s political theory was Durkheim’s sociology. Be it for
better or for worse, the problem disappears under the ideological cloak of
the law of nature—that is, the alleged practical reason of the human
animal. The discussion of political death within this discourse becomes a
technical issue at best. We should take a closer look at the state of nature
to see if discourse on it hides an intricacy eschewing this interpretation.
In the state of nature, according to Locke, everyone has the executive
power to partially administer violence, which looks pretty close to the
wide concept of punishment suggested in our introductory discussion.
The situation seems pretty horizontal, since the state of nature is “[a] state
also of equality, wherein all the power and jurisdiction is reciprocal, no
one having more than another” (Locke 1823, 340/§4) and one can conse-
quently speak of “the idea of a nonpolitical or prepolitical right to pun-
ish” (Simmons 1995, 223), which is, as we have stated, through the form
of political contract transferred to government. The catch here is that,
unlike in Hobbes, the portrayal of fictional primordial anarchy is more
charitable: a state of nature is not that bad, since it is governed by reason,
which tends to make people peaceful and cooperative, at least some-
times. 7 When this prepolitical peace is breached, implicit authorization to
punish according to natural law has been given to all continuing to live
according to civilized custom: by “transgressing the law of Nature, the
offender declares himself to live by another rule than that of reason and
common equity, which is that measure God has set to the actions of men
for their mutual security, and so he becomes dangerous to mankind”
(Locke 1823, 342/§8). Such terrorists should be punished on the grounds
of the right to preserve oneself and mankind; the right to punish in Locke
66 Chapter 1

is the right to “destroy things noxious to them, and . . . bring such evil on
any one who hath transgressed that law . . . make him repent the doing of
it, and thereby deter him, and, by his example, others from doing the like
mischief. And in this case, and upon this ground, ‘every man hath a right
to punish the offender, and be executioner of the law of Nature’” (Locke
1823, 342/§8).
The death penalty is a part of this penal arrangement where, quite
collectively, agents of reason and preservation work for the benefit of the
“whole species”: “every man in the state of Nature has a power to kill a
murderer” (Locke 1823, 344/§11). Locke is quite explicit and retribution
as justice is for him a self-evident truth, as the American Declaration of
Independence builds politics from the natural right of all men being born
equal in dignity and right to pursue happiness. The killer
hath committed upon one, declared war against all mankind, and
therefore may be destroyed as a lion or a tiger, one of those wild savage
beasts with whom men can have no society nor security. And upon this
is grounded that great law of nature, “Who so sheddeth man’s blood,
by man shall his blood be shed.” And Cain was so fully convinced that
every one had a right to destroy such a criminal, that, after the murder
of his brother, he cries out, “Every one that findeth me shall slay me,”
so plain was it writ in the hearts of all mankind. (Locke 1823, 344/§11)
Although Cain, a primordial biblical homo sacer, was marked and spared,
his understanding passes to public authorities entrusted with administra-
tion of natural law in the political state. The right to punish, residing in
everyone for the purposes of general prevention anchored in human rea-
son, is, however, distinct from the right of reparation “which belongs
only to the injured party” (Locke 1823, 343/§11), which doesn’t seem very
problematic, being more a thing of private law and property than the
prepolitical public law of the protection of order. In conclusion, two clas-
sics, Hobbes and Locke, offer something rudimentary: public order as a
function of public good, entrusted or irrevocably authorized, in both
cases legitimate as far as this order provides security and peace, and thus
makes collective life better. Punishment is framed as a fundamental pillar
of civilized society protected by the state. “Ever since Cain”—a biblical
metaphor employed by Locke—echoes in political theory, where the
death penalty is entrusted from the societal many to the political one (or
few for practical or principal reasons of liberal skepticism toward power).
Conditional death is in this discourse depicted as a starting point of civil-
ization; society as security is set against chaos figuratively represented by
animals. Murder means forfeiture of life to be taken in retribution, as a
message by the state as an agent of society that wants to destroy incorri-
gible “wild savage beasts” and tame others that might behave similarly,
weren’t they afraid of sword and fire. Utilitarianism develops this politics
within the metaphoric framework of the calculus of costs and benefits.
 Death Penalty 67

CONSEQUENCE AND DEATH: CAPITAL PUNISHMENT BY

UTILITARIAN GOVERNMENT

Utilitarian government is nominally benevolent, almost like the one en-

visaged by St. Thomas of Aquinas. The difference is that it, unlike the
Catholic Aristotelianism, works in secular or deistic manner, dropping
God out of secular policy issues. However, both in cases of utilitarian
thinkers and Catholic thinkers, good is better than the bad, and more
good is better than less good. Utilitarianism wants to maximize the pleas-
ure of the many, to minimize the pain of most. Both goals include the
punished, whose necessary pain has to be minimized as far as possible
while still remaining effective, in order to maximize the benefits of the
many, since “many” logically includes those punished, whose pleasures
and pains also enter the calculus. And this equation includes the death
penalty, which is, if proposed, framed as a necessary evil, a maximum
loss for an individual that can be justified only when absolutely necessary
for the whole. It is a strange thing to say for some, but in this sense,
perhaps, the distinction between Cortés and Beccaria is not that radical;
the death penalty is the foundation of order when necessary for its pro-
tection, while scholastic reasoning about the fundamental right to punish
is left to Hobbes. What’s in a name, anyway? Or contract. In the world of
utilitarian ethics, ideally speaking, individuals are not protected by inali-
enable rights or the sanctity of the contract. Like in certain forms of totali-
tarianism, their benefits and comforts up to their existence by itself, are
expandable for the collective, which may profit from their pain. They are
protected—only or ultimately—by the general utility calculus that at least
in some unqualified versions operates by the principle attributed to Bent-
ham that poetry is no better than the game push-pin. There is an inalien-
able virtual right to take part in the calculus of happiness escaping no
human being (and perhaps one day any being, human, animal, or other,
put somewhere on an evolutionary scale according to its phylogenetic
merits). That means death is possible, even mandatory, to reduce and
save the pain for the most, like torture in the ticking bomb theoretical
scenarios, but also that it is highly unlikely in the normal circumstances—
the problem of differences and measurement of pain put aside.
The right question is, which utilitarianism? Which is, in the history of
ideas and its champions, the question of whose utilitarianism. As usual,
some side notes and excursus will be of assistance to pinpoint the rele-
vant contours of the doctrine and its application to capital punishment,
but we do not need much more than few authors: Bentham, of course;
Mill, for some sidetracking; and Rawls, in the name of a more contempo-
rary pantheon of political thought. But first things first. Historically and
logically we should begin with Cesare Beccaria. Beccaria starts with a
fiction of contract that legitimizes organized political community in liber-
al terms and employs consequentialism as political maxim governing and
68 Chapter 1

justifying action of public authorities, which have a mandate to punish

individuals only as much as required by the protection of the public
good. In developing the principles of punishment, Beccaria pretends to
speak to the “human heart” where, for the purposes of rational construc-
tion of government, he sees moderate but not heroic will for security,
freedom, and well-being (a theme in other language later repeated in
Rawls’s contractarianism of the original position). People come together
to live better, to maximize their benefits, and for that reason they author-
ize government to make policies: “Any punishment that goes beyond the
need to preserve this bond is unjust by its very nature” (Beccaria 1995,
11). Beccaria’s plan is to offer a clear and simple blueprint for punish-
ment, where singular solutions are derived from general principles,
against layers of scholasticism, historical jurisprudence, and institutes,
somewhat similarly as Descartes’s treatise on method was directed
against postmedieval excesses of Aristotelianism in epistemological mat-
ters.
Contrary to the endless recycling of superficial readings, Beccaria
found extreme violence legitimate in certain circumstances. On the other
hand, he found torture reproachable and disgusting because, again
contrary to some contemporary theoretical elaborations, it is always use-
less. Beccaria simply works in the modern paradigm that sees judicial
procedure not as a trial of subjects but as the establishment of correspon-
dence of facts to law (which may be associated with accusatory proce-
dure, but only as a particular means to a general end). This doesn’t ex-
clude the death penalty as punishment, which is also subjected to scruti-
ny by the general utilitarian doctrine on punishment. The outcome is that
Beccaria sees it as redundant, excessive, and noxious, but only if the times
and situations are such that render it as useless. In certain circumstances,
capital punishment is legitimate utilitarian action for the government,
and laws may, and probably should, provide for it in certain situations:
“The death of a citizen becomes necessary, therefore, when the nation
stands to gain or lose its freedom, or in periods of anarchy, when disor-
der replaces the laws” and “his death is the true and only brake to pre-
vent others from committing crimes” (Beccaria 1995, 66–67). This general
political reason highlighting community protections seems to beat the
contractarian grounds prohibiting the death penalty, also present in Bec-
caria but seemingly constrained to the business-as-usual civility. “Who
has ever willingly given up to others the authority to kill him?” Beccaria
asks himself rhetorically, posing the same question that ostensibly bur-
dened Hobbes (Beccaria 1995, 66). 8 However, his general adherence to
“marginal deterrence,” which is an empirical principle (Does a penalty
work? is an empirical question), opens the door for the death penalty if it
prevents harm. It probably closes it in most circumstances, but on the
other hand opens it in some as a convenient or even a mandatory means,
for example, in the state of exception or when organized crime continues
 Death Penalty 69

corrupting society, working from the prison headquarters to the outside

where its operations continue.
If contractarian component works contextually, is the death penalty
categorically excluded by Beccaria’s general utilitarian principles? Prob-
ably not. To remind ourselves, punishment simply has to be proportion-
ate. It is the doctrine that goes in hand with Foucault’s observation about
an imbecilic despot defined by the excesses of force instead of subtle
work on subjects’ souls. The idea is to achieve “the most efficacious and
lasting impression on the minds of men with the least torment to the
body of the condemned” (Beccaria 1995, 31). Instead of any excess of
punishment, “the certainty of even a mild punishment” (Beccaria 1995,
63) is preferred, according to the general ideal of penal policy that has to
be, as underlined in the conclusion “public, speedy, necessary, the minimum
possible in the given circumstances, proportionate to the crime, and determined
by the law” (Beccaria 1995, 113; italics in original). This puts aside both
trivial and excessive regulation, but the bizarre concluding metaphor
again reads as a policy advice both on death penalty and against it in
peaceful times: “A lightning strike is needed to stop a fierce lion who is
provoked by a gunshot” (Beccaria 1995, 113). If there are wild beasts, one
accepts electrocution.
In conclusion, Beccaria offers an excellent example of how a utilitarian
discourse is humanitarian, but it is also a sword with two edges. On
completely different discursive and ontological grounds, one may end up
in death penalty, as doctrines that profess simple retribution soaked in
political metaphysics. Discursive tension between the two principles, of
inalienable rights and public good built on utility, seems to be solved in
favor of the latter in this reading but it seems to be possible to turn the
thing upside-down: there is a hidden contract, some sort of Rawlsian
heuristics of implicit reasoning in a contractarian situation, preceding the
development of the events, which gives birth to the contract imposing on
the subjects in the form of their silent consensus and acceptance of utili-
tarian operations for the protection of the order at the cost of the individ-
ual. It is again Beccaria speaking to the heart directly, beating closely to
the various proverbs that serve as the grounds for decision in hard situa-
tions. After all, one of these pithy wisdoms, crystallized short formulas
probably based on an accumulated experience, says that desperate times
call for desperate measures.
A remark on Montesquieu offers similar reasoning in historical and
comparative context. As one French theorist of law and legal sociology
observed, Montesquieu made science out of prose. Bourdieu, on the other
hand, analyzed Montesquieu’s monumental treatise as mythical, contain-
ing stereotypical oppositions that underpinned the occidental compara-
tive politics of the day, but it is without a doubt a classical piece of
rudimentary comparative political sociology avant la lettre, a vast and
rarely read treatise that had a utilitarian say on the death penalty when
70 Chapter 1

Beccaria was about ten years old. We can bracket somewhat philosophi-
cal problems of normative fallacy of deriving ought from is of la nature
des choses, mixed with some ought as such, leaving the thing as they are,
as in some historical magical lantern of fixed pictures, and arrive at the
point expressed in the third chapter of the first book of the first part of
The Spirit of the Laws that can be charitably interpreted as a reasonable
suggestion.
Montesquieu demands there that laws should be tailored to suit the
particular circumstances of geography, climate, and culture as a “way of
life of peoples” (genre de vie des peuples), which naturally includes the
penal legislation and the death penalty. Since the treatise is not obviously
written for the despots who do their own thing anyway but for the en-
lightened lawgivers, especially those in France who should learn some-
thing from the division of powers across the channel, the normative point
is that punishment should fit that pattern of reasonable legislation as it
was more consequently developed later by Beccaria and his followers.
Indeed, according to Montesquieu, laws shouldn’t be cruel if there is no
need for cruelty. Despotism is best suited for the savages, while moderate
punishment (la modération des peines) describes Montesquieu’s ideal, ad-
dressing his contemporary European audience and his ideal legislator,
usually finding the middle way (un juste milieu) between the extremes. As
later in Tocqueville, who follows Montesquieu’s steps, spirit is the key
word, highlighted already in the title, but discourse against despotism
corrupting the spirits again does not exclude the death penalty in princi-
ple, even if it argues against torture, slavery, and various forms of des-
potic cruelty. As in Beccaria, death as the right of a political sovereign has
its place as “a crucial deterrent” to work against crimes burdening the
society (Carrithers 2001, 315–16). Could the abolitionist stance have been
derived from the simple principle introducing the theme of the effect of
the punishments (la puissance des peines) at the beginning of the twelfth
chapter of the sixth book arguing for the simplicity of penal laws, as later
Beccaria did? There Montesquieu writes, “It can be observed from experi-
ence that in the lands where punishments are milder, the spirit of the
citizen is impressed by them as it is otherwise done with harsh punish-
ments” (Montesquieu 2002, 101). But this is again the double-edged
sword of empirical utilitarianism that serves to open the door for the
death penalty in extreme circumstances, such as armed conflict and war-
fare, or generally such situations where the impression on the spirits
allegedly cannot be achieved in a less drastic manner.
A caricature of consequentialism brought to the extremes and applied
in the matters of punishment appears in Bentham, adapted from the
eighteenth-century press. Its idea is that an inscenation of pain is as good
as pain since it works as an effective means on the level of general pre-
vention. Concrete content is found somewhere along the following, a bit
colonialist, lines: backward Hottentots are ignited, on the verge of a rebel-
 Death Penalty 71

lious violent outburst, but the Dutch forces know how to instill awe and
appease them through punishment. After liquor is poured into the throat
of the punished perpetrator, one of their own who offended the tribe
with his transgression, the transgressor performs the ultimate agony of
dying in pain. Even if regular water doesn’t substitute for eau de vie as a
liquid arguably more detrimental to the intestines, it is still a procedure
that an ordinary drunkard can sustain quite well and regularly pays for
it. The savages are happy. “We would have burned the skin from the
outside, but this is the trial by fire on the inside,” they conclude as their
retributive sentiments are appeased. It is, of course, an instructive carica-
ture about the master metaphor of the utilitarian discourse of punish-
ment that may sacrifice but also spare the individual of punishment since
the goal is not retribution but impression on the governed commoners.
As Foucault remarked, drawing a more general picture schematizing pe-
nal principles of the day, for punishment it was important to leave an
impression. Punishment was understood as a general communicative
sign (le signe), not any more as the mark (la marque) on the individual
body left by the punitive sovereign (Foucault 1975, 154–55).
However, Bentham’s certainly is not a cheap proponent of mock exe-
cutions. His position on the death penalty is more complex, as it is care-
fully analyzed in a seminal article scrutinizing his position on various
accounts (see Bedau 1983, 1061). Bentham thinks that the general princi-
ples governing all public actions are so obvious, unless one succumbs to
“caprice instead of reason,” but, as usual, the devil is in the details, that
is, in the application of the general utilitarian principles of government.
At first, the death penalty is something he is more or less opposed to—
since utilitarian reasons give primacy to imprisonment against death,
which is irremediable—but this is changed when, as Bedau mercilessly
observes, Bentham’s writing becomes “distinctly inferior, marked with
frequent use of the somewhat telegraphic and elliptical nonsentences”
(Bedau 1983, 1035, 1041). Bentham then affirms it, pathetically addressing
the people of France. Why?
In examining capital punishment in chapter 11 of his Principles of Penal
Law, Bentham’s sensibility speaks against torture (Bentham 1838, 443): he
approves Montaigne’s horror of cruelty and lauds his position as going
“far beyond the age in which he lived”; indeed, it seems that Bentham
would discard at least “the tragic exhibitions” of the “sanguinary execu-
tions,” since the afflictive punishment of torturing to death against the
simpler executions methods seems in any case to go against the general
principle of economy of utilitarian punishment. The very definition of
such species of capital punishment—“When any degree of pain is pro-
duced more than what is necessary for that purpose” (Bentham 1838,
441)—seems like an economic waste and exercise of nonmandated tyran-
ny. Normative overtones against torture and cruelty are clearly audible
in Bentham, as in Montesquieu, but the point is strictly speaking norma-
72 Chapter 1

tive in another sense, perhaps more consequently multicultural and func-

tionalist when browsing the supply of comparative politics of penal dif-
ferences. In other words, even an afflictive death penalty may be in order
when it plays the function of preservation of a public order: “The only
reason that can be given by any government, that persists in continuing
to employ a mode of punishing so highly penal, is, that the habitual
condition of the people is so wretched that they are incapable of being
restrained by a more lenient kind of punishment” (Bentham 1838, 443).
As in Beccaria, the point is not only counterfactual, or comparative,
speaking about distant despotic lands, using orientalistic figures to criti-
cize one’s own government (as in Montesquieu). Not surprisingly, des-
perate times call for desperate measures for any government. Utilitarian-
ism in Bentham’s writings turns out to be but a doctrine of the reason of
the state, an ethical ideology of incumbent faction seeking self-preserva-
tion, that is, the law of political reason, natural law miles away from
deontology that would categorically discard or accept death. Death is a
means for preservation of politics, usually inefficient and excessive, but
sometimes necessary, to be used when political power is in danger by
another aspirant for the place:
In fine, I can see but one case in which it can be necessary, and that only
occasionally. In the case alleged for this purpose by M. Beccaria — the
case of rebellion, or other offence against government of a rebellious
tendency, when by destroying the chief you may destroy the faction,
where discontent has spread itself widely through a community, it may
happen that imprisonment will not answer the purpose of safe custody.
The keepers may be won over to the insurgent party, or if not won
over, they may be overpowered. (Bentham 1838, 449–50)
However, Bentham keeps the death penalty beyond the ultimate check of
political disorder, seeing its narrow usage as necessary to counter some
aggravated misdeeds of substantially nonpolitical nature: due to the “ef-
fects it produces in terrorem, it ought to be confined to offences which in
the highest degree shock the public feeling—for murders, accompanied
with circumstances of aggravation, and particularly when their effect
may be the destruction of numbers” (Bentham 1843, 319). But, as in Bec-
caria’s treatise, the far-reaching philosophy of history erases it. Bent-
ham’s disclaimer in addressing his fellow citizens of France, where he
cites the “general custom” delivering “its testimony in favour of [capital]
punishment,” projects its abolition to the future: “The punishment of
death—shall it be abolished? I answer—Yes. Shall there be any exception
to this rule? I answer, so far as regards subsequential offences, No: mean-
ing, by subsequential, an offence committed on any day subsequent to that
which stands appointed by the law, as that after which no such act of
punishment shall be performed” (Bentham 1838, 525–26).
 Death Penalty 73

Perhaps not so paradoxically for a sensible social liberal, Mill intro-

duced class into the world of utilitarian egalitarianism. It was somewhat
like in Lynch’s The Elephant Man, where vulgar exploitation of a mal-
formed person appears at least a bit worse than the one by the higher
classes who give gifts, pay respect, and ascribe subjectivity to a former
circus freak, enabling his personality to develop. At least from the per-
spective of the higher classes, some things are more beautiful and worthy
than rolling in mud or indulging in cheap liquor. And when poetry is
better than push-pin, it comes as no surprise that the death penalty,
sometimes a spontaneous practice by the mob but more often an institute
of the aristocracy historically wedded with blood and death, finds a posi-
tive place in Mill’s discourse. In a speech opposing the bill banning capi-
tal punishment, in the spring of 1868, his argument confirmed necessity
of capital punishment that preserves the order. However, its affirmation
still appears in lingering historical context of prolonged tortures and the
technologies that intended to achieve longer duration for such and to
maintain intensity of pain. Mill highlighted the short duration of pain of
the simple execution that he framed as comparatively humane. In nuce,
for Mill, the death penalty is bad enough to be necessary but not that bad
to be abandoned completely like torture. He claimed that the death pen-
alty is “the most appropriate as it is certainly the most impressive, mode
in which society can attach to so great a crime the penal consequences
which for the security of life it is indispensable to annex to it. I defend this
penalty, when confined to atrocious cases, on the very ground on which
it is commonly attacked—on that of humanity to the criminal” (Mill
1868). The contemporary reader ultimately cannot be sure how much of it
is political theology strangely affirming humanity through punishment
and how much is simple confrontational speech given in a specific politi-
cal moment of the parliamentary advocacy of a position, in a historical
moment when the backlash of punishment is expectedly conjured. In any
case, it seems that higher sensibility does not include inalienable rights
for all, including the common criminals, which are sacrificed on the altar
of political theology or simple daily politics.
Is there a place for the death penalty in more up-to-date utilitarian
writings? John Rawls, a modern contractarian, normative, political theo-
rist of justice who also builds on the tenets of the utilitarian tradition,
does not mention Hottentots when discussing punishment. He instead
performs a more contemporary thought experiment having to do with
telishment. Rawls infuses an old colonialist anecdote with a realist social
dynamic. Telishment is a utilitarian punishment of the innocent per-
formed to curb the surge of a certain crime, a practice that can find a real-
world approximation in police work subjected to public and political
pressure to find the crook and indict, which has resulted in the pinning of
crimes on innocent individuals (at least concerning the pinned case). In
Rawls’s experiment, a community is faced with “a wave of offenses simi-
74 Chapter 1

lar to that with which they charge . . . and telish” and, at least prima facie,
the incentive for the utilitarian authorities emerges to punish anyone at
hand just to stop the further damages. But this, expectedly, brings some
unwanted side effects within the society of reasonably informed rational
actors constituting the political community governed by punishment:
They will be uncertain as to whether a convicted man has been pun-
ished or telished. They will wonder whether or not they should feel
sorry for him. They will wonder whether the same fate won’t at any
time fall on them. If one pictures how such an institution would actual-
ly work, and the enormous risks involved in it, it seems clear that it
would serve no useful purpose. A utilitarian justification for this insti-
tution is most unlikely. (Rawls 1955)
In the simple utilitarian anecdote, the punishment was fake. It was a sign
that produced the desired effect without rendering pain unto an individ-
ual. Therefore, for the utilitarians, it was better stuff. Here, telishment
renders pain; it is a real punishment but performed on the innocent to
scare off the potential perpetrators. General prevention through some
sort of aleatory collective punishment can hit each and every member of
the political community for its greater good. The thought experiment
develops such an extreme practice until it dissolves in the open space,
exhibiting its naked absurdity; for Rawls, “an institution which is set up
to ‘punish’ the innocent, is likely to have about as much point as a price
system (if one may call it that) where the prices of things change at
random from day to day and one learns the price of something after one
has agreed to buy it” (Rawls 1955). In other words, it is not far away from
another fictional classic on punishment, the mind-boggling Borges’s Bab-
ylon Lottery. The point made by Rawls, a socially sensitive political liber-
al, is that one has to differentiate between individual grounds for punish-
ment and its general justification before bringing them closer together.
However, the question is, if one cannot telish, after the shaky foundations
of extreme utilitarian punishment are discarded, can one punish the real
perpetrator with death within this framework? The answer has to do
with another Rawlsian thought experiment, perhaps more famous: the
veil of ignorance imposed on the rational contracting parties deciding on
the “basic structure” of society (Rawls 1999).
What is the point of the veil of ignorance? It is a crypto-egalitarian
maneuver of political theory: equal, rational actors behind the veil choose
their principles, while a bit cynical remarker might add that everything
that matters practically is behind the veil. Rawls thus appears as a naïve
anti-Marx, but our question is what does this ideological framework,
from a Marxian perspective, say on the death penalty? Since the latter
cannot be accepted on dogmatic grounds, as in the argument for capital
punishment for the corruption of faith in Aquinas (Rawls 1999, 186). All
the contracting parties being rational and equal, does their universalized
 Death Penalty 75

judgment accept the position that the death penalty is a necessary means
against the starkest murderous transgressions that can be justified if ap-
plied fairly and in a just manner? One expert on utilitarianism and death,
Hugo Bedau, fills the Rawlsian veil of silence on this concrete issue. He
thinks the death penalty is a no-go within a Rawlsian framework; infor-
mation on societal inequalities and bias, questionable deterrence of the
death penalty, and the practical possibility of a mistake would make
rational actors not ready to take the risk deciding in favor of this institute
behind the veil of ignorance (Bedau 2003, 718–19).
A theoretical device of the contractarian Rawls theory, egalitarian in
nature, says that differences and particularities should be put aside in
devising rules for the governance of the just society. Norberto Bobbio
claimed that, in contrast to the political Right playing on differences, the
defining ideological position of the Left is that there are more things that
bring us together than apart, which would thus leave political death to a
different chorus. It is calculated out of existence by the contracting par-
ties, that is, the initial position of uniformed utilitarians. Although vio-
lence in society is possible and quite constant, and thus we enjoy the
discourse of political theory instead of anarchism or the heavenly choirs
of benevolent altruists, state violence is constrained and death penalty
eliminated in this risk-averse approach of subjects protecting their skins
as potential circumstantial murderers to be sanctioned. The ontology
read into the Rawlsian contract can be the one of the sanctity of the
human rights: the right to life, no matter the circumstances, has to be
observed (unless the subject to come is still in a womb, perhaps, but that
is another set of hard political, ethical, and philosophical questions).
Unlike the Rawlsian risk-averse contrahents devoid of the usual re-
tributive sentiments, the mainstream of contractarian thought seems to
allow for the death penalty. It is a discourse of justice (or perhaps a
Russian roulette for those ignorant of the facts about the death penalty
deciding behind the veil); it is a discourse of those giving away their
individuality, binding themselves to each other in a political society. It is
a sacralized political contract of contractors; after the rules are agreed
upon, justice is served according to those rules, demanding retribution or
utilitarian prevention that, at least in some cases and instances, allows for
strict, if not fatal, punishment. In the latter sense, even Beccaria’s aboli-
tionist name without significant distortion appears in the club of
pro–death penalty quotes.
After all, the caricatural discourse is an easy mark for criticism, which
shows the absurdities of one-sided ethical position. Prepolitical in a
sense, utilitarian ethical governing of punishment and death appears in
several versions. After deontology is criticized as too demanding and
noxious for this world that would perish or suffer under such burden (fiat
iustitia, pereat mundus), the utilitarianism brought to the extremes says,
“Let Pedro hang,” even if Pedro is not at all guilty or is not at all pun-
76 Chapter 1

ished, and then the other Pedros start wondering if this is a good thing to
do, perhaps deciding against death or justifying it in principle to protect
themselves. Thus we arrive at Rawlsian contractarian–utilitarian hybrid
where death can be imposed or erased depending on calibrating the on-
tologies of the contracting parties and empirical data on the death penal-
ty. However, in historical contractarian discourse directed at the already
formed states that owe some kind of democracy or well-being to their
citizens in terms of input and output legitimacies, the sanctified political
contract of the historical Continental political theory pumps up the pa-
thos, sealing the political contract with a signature of future citizen’s
death.

CONSENT TO DIE: SANCTITY OF POLITICAL CONTRACT

After discussing Rawls we arrive back to contractarians, but to those who

add a peculiar flavor to the discourse of death in the hands of state. It is
not the question of literal religiousness—all of them were more or less
religious—but the de facto religiousness as a part of political construc-
tion. Hobbes and Locke were down to earth in that sense (since natural
law is but a common sense). Their contractarianism was not transcenden-
tal. Their political theology was of different kind. Not so on the Conti-
nent. Here the state is a mortal god, and none of the intricacies of a
utilitarian calculus are needed. In general, the discourse that shall be
portrayed ignores such an economy of pleasure and pain as sophistry or
small-mindedness ignoring the bigger picture of a moralized political
state.
Interestingly enough, the position that is perhaps more familiar to the
students of punishment and the death penalty through their reading of
Kant and Hegel finds its primordial statement in Rousseau’s Social
Contract where everybody gives themselves to everyone in a euphoric—
for some liberating utopian, for some oppressive totalitarian—political
model of education of citizens who shall perhaps one day return to the
woods and be natural men and women again, lonely walkers pursuing
their reveries. Although it would be barbarian to kill enemies who lay
down their arms after they are conquered, it is not so for those who lay
bare before the power of the state, expecting death penalty for a capital
crime. The party in the social contract, a political contrahent, has, togeth-
er with his status of the citizen, accepted potential death if he radically
and criminally succumbs to the impulses of his lesser uncivic self, follow-
ing his particular interests or passions up to the death of another citizen.
It is an implacable republicanism. According to the terms of a political
contract that demands the protection of the state, it has to sacrifice those
who go astray and compromise the value of the whole. Legal and legiti-
mate death is part of the deal to establish a political community.
 Death Penalty 77

Nothing seems farther from Rousseau than a flock of citizens wonder-

ing if someone is punished or telished. Social contract means absolute
devotion to politics and perhaps one day the rebirth of man from Rous-
seau’s “sad system”; even if he was better off as a lonely wanderer, away
from society and moral decadence, man was hit by the large dog of a
corrupt civilization, accepting property and such cheap tricks, as Rous-
seau was hit by un gros chien danois in his mystical seclusion. The exit
from this sad state is not found in the dynamic political economy like in
some other thinkers of emancipation but in entering collective politics,
which is a serious game demanding punishment for those who breach
the rules. Within Rousseau’s brand of republicanism, punishment is a
means of political community constituted by the general will, where eve-
ryone gives himself completely to all the other citizens, thus giving him-
self to no one in particular. Specifically, it is a means of reaction to
breaching the pact. Politics has the mandate to curb and rectify particular
selfishness and to punish it by death when it has gone too far away. The
death penalty is the institute fulfilling the will of the citizen to die if he
has signed the political contract and has not been faithful to it; since by
entering sovereignty life itself is no more a natural good, but an asset of
the state, the death penalty is not abominable but expected: “Death pen-
alty inflicted on criminals can be seen almost from the same perspective:
in order not to become the victim of a murdered, one accepts to die if
becomes one” (Rousseau 2012, 23/226).
According to the fifth chapter of the second book, ambivalently speak-
ing on the right of life and death in a contrat social, one who kills another
is in principle not compatible with the state. In reading Rousseau, we can
see an almost Schmittian combat of friends and enemies until the possible
extinction of one side. The friends of politics and its enemies, the propo-
nents of the general will of political community against extreme excesses
of the particular will: for Rousseau, one of these must perish (il faut qu’un
des deux périsse) and unlike in Hobbes, who is quite strict, cold, and unpa-
thetic with his vocabulary, for Rousseau the perpetrator is killed, at least
metaphorically, as an “enemy” of the state: “and when one makes the
guilty die, it is less as a citizen than as an enemy” that his life is taken
(Rousseau 2012, 23/226). Contrahents are thus protected by le droit de vie
et de mort within Rousseau’s principles of political law and political
contract, preserved by the death penalty.
In analyzing this discursive maneuver, Lapenna notices Rousseau’s
incoherence (Lapenna 2011, 118–19). The killing of the prisoner of war is
something that is not done by a just sovereign who respects the persons
and the goods of the conquered after they have laid their weapons down
(Rousseau 2012, 9/199). To kill them, as Robespierre later noticed in his
more humanistic moments, would be barbarous, comparable to the stran-
gling of the child because of the easily observable disparities in power,
but Rousseau does not apply the same humanistic reasoning consequent-
78 Chapter 1

ly in the cases when big nation-states kill an individual, that is, when they
administer the thing called the death penalty. At least, we can see that
Rousseau was not careful with his metaphors—an enemy in the “enemy
of war” may not be the same one as the enemy in the “public enemy”—
but the question of historical practice associated with his treatise is per-
haps more haunting than the usual language games. The problem in the
application of the doctrine is in the following political fact: when the
anointed practical interpreters of the general will are endangered, they
tend to expand the right to put the citizen to death to more far-reaching
operations of political terror.
In that sense, it does not surprise the reader when Lapenna writes
about the humanist mentioned in the last paragraph, a person whose
name is usually associated with the fanaticism of general will and revolu-
tionary terror to save the republic with blood and ideological mysticism
of the civic religion. It is less known that Robespierre held a speech on the
injustices of death penalty on 30 May 1791 to later end up as a notorious
head-cutter (coupeur de têtes), being consequent from that point on at
least, since the same political destiny fell on the incorruptible citizen
Maximilien when he was guillotined on 28 July 1794 at the then Place de
la Révolution. The application is a bit like the history of the church in
contrast to the message of the Gospel, as we see in the following chapters:
the history of the revolution considering Robespierre’s volte-face on the
question of death penalty, witnessed “the genuine subordination of ideo-
logical plan to practical necessities” (Lapenna 2011, 182). Robespierre’s
lesser known discourse warrants a bit more attention.
In his speech in front of the Constituent Assembly (Robespierre 1791),
Robespierre argues against the supporters of the death penalty as an
ancient barbaric routine (les partisans de l’antique et barbare routine), who
justify death penalty by wrongly claiming that without it, it would be no
deterrent effect strong enough to scare away people from crime (sans elle
il n’est point de frein assez puissant pour le crime). Like in Kant, according to
Robespierre, one should see in another human being “a sacred object”
(un objet si sacré), sacred enough at least not to be politically expandable
to instill fear of crime into others. Ruling powers that should ensure
public morals by the model of justice and reason should not answer to
crime by another crime of cruelty:
If, in place of that powerful, calm and moderate severity, that should
characterize them, they install fury and vengeance; if they make human
blood flow, that they could spare and that they have not right to spill; if
they exhibit in front of the eyes of the people cruel scenes and cadavers
slain by torture, in that way they alter the ideas of just and the unjust in
the hearts of the citizens; in the heart of society they plant the ferocious
prejudice that would in turn produce other prejudices. (Robespierre
1791)
 Death Penalty 79

To be fair, it is a discourse echoing the spirit of Montesquieu, specifically

aiming at the royal theater of torture (afflictive death penalty in Bent-
ham’s vocabulary), but one must remember that guillotine, a penal altar
of engineering and efficiency, offered its streams of blood and heads
falling in baskets like vegetables in public that are hardly reconcilable
with Robespierre’s discourse, even if the “excesses of severity” (l’excès de
la sévérité) are opposed to “the efficiency of punishment” (l’efficacité des
peines). Robespierre reminds his audience that in free countries punish-
ment is lenient and penal laws mild, unlike in corrupt oriental despotic
regimes; since a legislator isn’t a slave-owner, he cannot pursue his gro-
tesque fantasies in punishment. This mélange of Montesquieu and Bec-
caria, where normative position is expressed via comparative sociology
and ancient history of punishment (historical Japan fares particularly bad
in Robespierre’s discourse), paired with contractarian notions of govern-
ment and utilitarian instrumentalism concerning punishment, however,
ends up with a categorical “no”: Je conclus à ce que la peine de mort soit
abrogée. Thus we get one of the bigger ironies of theory and practice of
punishment expressible as an observation that the general will may vary
significantly depending on the space and time of punishment.
And Kant, the biggest of them all, instills fear and veneration: a name
connoting something far away, lofty and cold, at least to the kids at
boarding schools, Zöglinge like the young Törless from Robert Musil’s
early twentieth-century novel. One is reminded of Cassirer’s text stating
that nothing less than one Kant was necessary to fully understand the
grandiosity of Rousseau’s project (Cassirer 1989). It is certainly so in the
area of punishment where The Metaphysics of Morals offers an elaborated
position building on Rousseau’s initial metaphor. The same political
theology develops. Punishment by death is for Kant but a categorical
imperative, law’s reaction to murder, as it is expounded in his principles
of public law in the aforementioned work. Unlike Robespierre, Kant as a
cold quietist Protestant did not for a second fall for the humanistic sirens’
call of abolitionism. Speaking of the compasssibilitas of Marchese Beccaria,
he is not at all charitable: “This is all sophistry and juristic trickery” (Kant
1996, 108).
The times were different, and a child born out of marriage could be
called, contrary to the contemporary standards of political correctness, a
“contraband merchandise” even by such a venerable philosopher. It is
the exact symbol Kant uses to denounce any kind of trying to escape the
categorical necessity of retributive punishment: “The law of punishment
is a categorical imperative, and woe to him who crawls through the
windings of eudaemonism in order to discover something that releases
the criminal from punishment” (Kant 1996, 105). Unlike the pragmatical-
ly minded utilitarians, in his writings Kant was quite unyielding in his
preference of the death penalty; according to his opinion, only knaves
should choose imprisonment over an honorable death that redeems their
80 Chapter 1

misdeed. As we see in the fifth chapter, Kant by so arguing even ap-

proached the position that affirms swift Sharia punishment over the de-
grading prison, as expounded by some Islamic theologians. Philosophi-
cally, it is the distinction of homo noumenon and homo phaenomenon, figures
that give gravity to the categorical imperative operative both in morality
and punishment. The pure legislative reason is placed within the former
sublime member of political community in the Kantian project of politics,
an engineering of the principles governing political community. 9 All of
them are such “noumenons,” listening to their higher selves when closing
a social contract, as was put forward by Rousseau.
After all, political theory is often a diluted religion. Not surprisingly,
some succumb to sin: one commits crime as a mere particular person, a
homo phaenomenon, victim of his more superficial and composite-appear-
ing self. Punishment, placed in the sphere of the kingdom of ends, re-
turns dignity to such a fallen person. It cannot be used as a means to
induce others to some behavior mechanically. It is not so with Kant: it
concerns only the debt and injustice done by a singular person. Accord-
ing to Kant, you cannot lie even to the murderer coming at your door and
asking for the whereabouts of his future victim, hiding at your place. It is
anti-utilitarianism distilled. Kant, however, which much unnerves La-
penna, does not come to the conclusion on absolute nullity of the death
penalty from that position—if every person is an end by himself or her-
self, why kill?—but he instead still operates within the logics of sove-
reignty that takes the individual as a means, not for or against others but
as a retributive consequence. The killer took the others as means, and
consequently the same may apply to him. There is no substitute for this
retaliatory logic except that retaliation does not have to be literal in a
civilized society. In discussing “the right to punish and to grant clemen-
cy” Kant thus offers simple retribution as a general framework warrant-
ing the death penalty:
If, however, he has committed murder he must die. Here there is no
substitute that will satisfy justice. There is no similarity between life,
however wretched it may be, and death, hence no likeness between the
crime and the retribution unless death is judicially carried out upon the
wrongdoer, although it must still be freed from any mistreatment that
could make the humanity in the person suffering it into something
abominable. (Kant 1996, 106)
The end in the person is thus preserved by the theoretical dignity of
method: a Bauhaus of simple execution seems to be preferred to any
baroque of historical torture. Hegel offers a culmination of this reasoning,
bringing the distinction between the two selves to the extreme of state
religion as expounded in his Elements of the Philosophy of Law. Against
Beccaria and other theorists of liberalism, already the level of discourse, a
sort of macro-theorizing discussing the whole before its elements, deter-
 Death Penalty 81

mines the fate of punishment. Hegel in his political theology offers a true
divinization of the state. It is not instrumental, liberal, and limited, a trust
managing the needs of the multitude. It is an absolute purpose, perhaps
like the Aristotelian polis transcending the individual; outside the polis, a
Greek is nothing since he is human—only gods and beast can live outside
of political community. Thus, in Hegel, the state as an organic entity, a
crown of the collective ethical life (Sittlichkeit), transcending the contract
of selfish individuals, can put a citizen to death by sending him to war or
punishing transgressions in the civil state: “The state is rather that higher
instance which may even itself lay claim to the lives and property of
individuals and require their sacrifice” (Hegel 1991, 126/§100). Although
this irritates transepochal liberals such as Popper, it is only a bit archai-
cally and pathetically phrased communitarianism, Rousseau’s ground-
work elaborated with more pathos if that is possible and veiled in the
language of metaphysics.
There is not much more to say about it. Hegel, as is known, opts for
dialectical vocabulary in expressing the same idea present in Rousseau
and Kant. Perhaps it is not only a vocabulary but a venerable philosophi-
cal method, logic beyond Aristotle, or even a way of the world in conflict
and development. In any case, to see the death penalty as a negation of a
negation (murder) that brings peace to world on a higher level of entropy
is not to say anything radically new in comparison to his forbearers, but
this discourse opens up impressive stylistic possibilities of translation
and has a wide applicability. It may be dialectical that the negation of the
negation is negated historically these days as a wrong type of negation.
That is: we live in an era when death penalty is seriously questioned, and
this is further probed in the next more skeptical and static chapter, even if
it deals with such a moving target such as history.
To sum up, for Hegel the death penalty is an almost spiritualistic
category, a catharsis that confirms a transcendental higher person, pun-
ishing and thus expiating the person of the criminal who committed the
grave-enough crime. For Lapenna, through Hegel’s excess of state-affirm-
ing discourses, his predecessors came to light. It is the peak of German
idealism and of political theology of punishment of Continental contrac-
tarianism, putting the whole before the individual. An obscure spiritual-
ism consequently hits Hegel’s predecessors, as Kafkianism hits Zeno of
Elea, the alleged inventor of dialectics and the author of paradoxes, in
Borges. Seeking to affirm the construction of the political order they have
built, they theoretically affirm political transcendence, sacrificing the in-
dividual who in the practice of the death penalty has to deal with earthly
bureaucracies, interests, and mistakes in the settings that are close to
lynch or simply identical with it. A bandit may escape justice, but an
innocent can pay his nonexistent dues to society within the realities ab-
stracted in political theology of sovereignty and the death penalty. As in
Hendrix’s eerie song 1983, one dreams of escape “not to die but to be
82 Chapter 1

reborn away from lands so battered and torn.” That is the theme of the
next section, dealing with discourses that question the death penalty,
framing it as a political theology of human sacrifice.

AGAINST THE POLITICAL MOLOCH: BRINGING DEATH BACK TO

DESTINY

Clutches of politics readily succumb to metaphorical representation and

evoke historical reminiscences and myths in Benjaminian attempts to
bring the (rotten) essence of order to light. The pagan god serves this
purpose almost ideally: an idol of bronze associated with child sacrifice—
Milton’s “horrid King besmear’d with blood of human sacrifice” or Rus-
sell’s “jealous god,” a model deity expecting unquestionable submission
(Russell 1903). The death penalty’s establishment as a right of the state, its
subsequent vindication through its penal efficiency (that may backfire
with a little help of empirical work that acquires a rudimentary presence
even in such places as Robespierre’s abolitionist speech), and its sanctifi-
cation through contractarian ruminations during the eighteenth and early
nineteenth centuries were challenged by another prominent perspective
on capital punishment: the death penalty gained the status of a devour-
ing Moloch in later abolitionist literature, which questioned the basis of
political theology within the discourse of compassion and human rights
in an era of lost political transcendence.
In the discourse of political theology, the sacred is projected to the
political; the death penalty is a strong political myth that demands sacri-
fice to ensure order, killing particulars sometimes allegedly for their own
transcendence. But if one accepts the transcendence of a sovereign’s con-
stituents, the people comprising all the individual persons, this can para-
doxically lead to the opposite conclusion. The specialty and preciousness
of a human, its soul, is not found in the higher self to be saved by the
sacrifice of the lower self but in an immanent self, a living person. As the
medieval Christology of the sovereign transformed itself into an imma-
nence of secular democracy, within the confines of the history of Euro-
pean political ideas, the foundations of the death penalty became less
firm than before. Even if the proponents of abolition were not atheists,
they put the focus of legitimization in the sphere of the observable life on
this earth. They presented the discourse that pays respect to the human
condition, advocating understanding and correction instead of condem-
nation and death.
This counterdiscourse, sometimes shy and compromising as when
lurking somewhere behind the establishment of the United Nations and
postwar universal proclamations of human rights that are now long be-
hind us, was built on human dignity, ascribed even to a killer, a secular
person of this world, perhaps not guilty since violent action is a product
 Death Penalty 83

of circumstances beyond one’s autonomous control. How can one drasti-

cally punish a subject who is not guilty? Thinking about a pendulum,
together with Camus who reflected on the guillotine, Arthur Koestler,
who was himself on death row waiting for political execution in the
hands of “Loyalists” in the 1930s, concluded that the death penalty was
warranted by a suspicious underlying belief that God gave humans a
freedom of action. Belief in spiritual atonement before God through the
death penalty is possible only in such strange circumstances of free
choice that preceded the punished act. Even if Koestler’s strokes in his
quest against the death penalty were not always empirically accurate (see
West 1957, 1355, 1364), he hit the metaphysical nail on the head as his
coauthor Camus did in the same volume. In The Stranger, salt and water
work together in Meursault toward an absurd killing followed by an-
other one administered by the state, where the execution of the judicial
announcement that a head will be cut at the public place in the name of
the republic, perhaps with the hurling of the multitude, brings catharsis.
If consequent existential philosophy of alienated absurdism cannot deliv-
er a credible anti–death penalty position, Camus’s abolitionism was cer-
tainly more explicit in his Réflexions sur la guillotine (Camus 1957). The
death penalty simply does not go together with the secular state where,
unlike in theocracies, judges and public officials more generally do not
have a transcendental divine mandate, which means they govern based
on an order that ultimately grounds its evidence in scientific findings
(which are themselves quite inconclusive on the efficiency and penolog-
ical value of the death penalty). Evidence-based policy making set aside,
it appears that in a secular society, “[w]hen an atheist, skeptical, or agnos-
tic judge imposes the death sentence on an unbelieving condemned, he
pronounces a definitive penalty which cannot be revised. He places him-
self on the throne of God, without having his powers, and besides with-
out believing in him. He kills, in sum, because his ancestors believed in
the eternal life” (Camus 1957, 163).
Contrary to the above-sketched political theology, the death penalty is
then a no-go for secular political machineries of our age, an atavism of
tradition, a relic of a faith long gone. Their religious doctrine concerning
capital punishment—Leo Strauss would disclaim they have any real re-
ligion, while social sciences fiddle to the burning Romes of liberal democ-
racies of the West, behind the veil of methodology and techniques of
observation clouding the banalities of the depraved common sense—was
offered earlier by Hugo with his progressive pamphlets in the spirit of
social pragmatism. Punishment is not for society; only God punishes.
Neither is revenge, since only individuals have a mandate for that. Soci-
ety can only correct with the goal of betterment; it cannot punish, but
only ameliorate (see Hugo n.d., 32). His position is best summarized in a
metonymy anchored in a specific technology of punishment: his power-
ful quip was that heads should not be cut but educated. Instead of eras-
84 Chapter 1

ing guilty individuals, an early socialist creed that saw autodetermina-

tion as fishy and redemption as out of the bounds of politics, discursively
placed this ultimate punishment on shaky grounds. Perhaps it was not
sound in terms of logic, but it offered a seductive narrative that gave a
mandate to society to better things: what cannot be achieved by an indi-
vidual, whose responsibility for capital crime is disclaimed, can be
achieved by a whole lot of them when they wake up politically.
In this fashion we end up with the sacred right of life, expounded by
Tolstoy, the radical pacifism that does not exempt the evildoers, claiming
that they have exempted themselves, but realizes that one violence is not
erased by another. Although, as we shall see, Christian religious dis-
course may oppose the death penalty (in the manner of gospel offering
the other cheek instead of punishment, expiation, and death), the Old
Testament–style retributive sentiments accept the death penalty, as do
the secular theories as exemplified with Kantian reasoning on the subject,
advocating death, perhaps hypocritically, as a nominal token of respect
not patronizing the criminal, while it could be exactly the opposite: pa-
tronizing the indicted to death with the practical consequence of killing
him. Another strategy, then, is not to say the death penalty is bad in any
secular state of political affairs, but to say it is ideally acceptable, if one
would live in a Kantian world of responsible autonomous wills. It is the
argument that says the death penalty is all right but that society isn’t, so
the death penalty should be suspended at least until the moment where
the basic structure of society is fair, creating something that could be
called freedom of various wants and deprivations that shape subjects
drifting into a life of crime.

DEATH AND POLITICAL ECONOMY: IT’S MARXISM, STUPID!

Instead of simply dismissing Hegel, there is a way to put him on his head
and at least temporary suspend him, as Marx and Engels insisted some
time ago, writing the famous German Ideology; our concepts are conse-
quence of our economic and social life world and not the other way
around, as we sometimes blindly think, mistaking particular functional
legitimizations for a neutral universal knowledge. Karl Marx applied this
general critique of German idealism to its affirmation of capital punish-
ment. He did so in a compound newspapers commentary over a century
and a half ago, dealing (among other subjects) with the hangings infor-
mation provided by the London Times and employing some (by today’s
standards) rudimentary statistical observations: “Punishment in general
has been defended as a means either of ameliorating or of intimidating.
Now what right have you to punish me for the amelioration or intimida-
tion of others? And besides, there is history—there is such a thing as
statistics—which prove with the most complete evidence that since Cain
 Death Penalty 85

the world has neither been intimidated nor ameliorated by punishment.

Quite the contrary” (Marx 1853).
In another irony of dialectics, the left Hegelianism exemplified by
Marx is in the subject matter of punishment and the death penalty ruth-
less in treatment of the philosophical legacy of its predecessor. In the
quoted piece, Marx concludes “that German idealism here, as in most
other instances, has but given a transcendental sanction to the rules of
existing society.” He substitutes the “abstraction of ‘free will,’” further
abstracted away by the scare quotes, with the “multifarious social
circumstances pressing upon” a subject that ends up in the penal appara-
tus, as in The German Ideology where circumstances of life and work pre-
cede the ideas entertained by the subjects. The death penalty is conse-
quently a topmost disgrace for a disgraceful and unjust society, itself a
shame to be toppled by the proletarian revolution. Marx’s rhetorical
question referring to the edition of the London Times of the day needs no
special explanation: “Now, what a state of society is that, which knows of
no better instrument for its own defense than the hangman, and which
proclaims through the ‘leading journal of the world’ its own brutality as
eternal law?” (Marx 1853)
Ironies aside, and empirical politics of death in the first state of social-
ism—whether via the formal supreme degree of punishment, the Vyss-
haya Mera Nakazaniya (see Bohm 2008, 288) or an “informal” action of the
political machine, usually associated with the more familiar Gulag acro-
nym—the interesting and important analytical point is that the discourse
that criticizes the existing society is not ideally directed against the death
penalty itself. This conundrum can be resolved by Murphy, who reflects
on Marxism and punishment in his now-classical text (Murphy 1973)
elaborating the work of Willem Bonger, a Dutch criminologist who, fol-
lowing Engels’s cues, linked various types of crime to the dynamic of
capitalism. Murphy, in fact, brings Kant and Marx together in a similar
fashion that Charles Lindblom can bring Hayek and Marx, that is, they
bring the impossible together. Markets and pluralism are good ways to
structure interactions of fallible and interested analytic and acting en-
tities, but society is structurally flawed, so it has to be changed, reset to a
more fair initial position where power is really equally distributed. Mur-
phy’s point is not necessarily that of Marx, orthodox Marxist or authenti-
cally Marxian, but illustrates the possibility of the development of the
position that is analogical to Lindblom’s move: to simplify a bit, for Mur-
phy Kant is right and the death penalty can be ideally just. But Marxist
criminology points to the forces of society that impair autonomy that
should be a prerequisite to impose death on killers if we want to call that
justice—since “a Marxist analysis of a society” undercuts “the practical
applicability” of retributive theory that is otherwise reasonable (Murphy
1973, 222). Murphy shares this point with the essential Marxist view on
punishment: that the system, producing a predictable statistics of crime,
86 Chapter 1

has to be changed before any punishment, with the possible utopian

catch that such a change would render punishment useless since crime
would be no more: “crime itself and the need to punish would radically
decrease if not disappear entirely” (Murphy 1973, 243).
This bring us back to the “Ever since Cain” part, referring in the more
recent historical period to the genre of paleosociological criminology of
the cartographic school, exemplified with a beautiful black-and-white
Croatian movie from the former Yugoslavia period, named Ritam zločina
(The Rhythm of Crime), where a loony professor can predict every single
crime from the statistics and finally sacrifices himself as a victim of crime
to correct the rhythm of crime that has gone amok. Marx takes a bit of a
similar posture. He praises Adolphe Quetelet’s work, operating with the
concept of the statistical “average man” (l’homme moyen), who sees pun-
ishment as an unjust social cost, ignoring the realities of society that can
be corrected. “We might even predict how many individuals will stain
their hands with the blood of their fellow men, how many will be forgers,
how many will deal in poison, pretty nearly the same way as we may
foretell the annual births and deaths,” Marx quotes Quetelet’s L’homme et
ses facultes (1835), impressed by the constancies of statistical overviews of
the annual Compte general (Quetelet, quoted in Marx 1853). For Marx,
penal institutions, as the political institutions of the bourgeois society in
general, are ideological at best; their intimidation or amelioration does
nothing in terms of “the fundamental conditions of modern bourgeois
society in general, which produce an average amount of crime in a given
national fraction of society” (Marx 1853). We thus come to Hugo, reduced
from society to economy, more specifically to “relative poverty.” As in
every electoral campaign, the familiar motto of political marketing—“It’s
the economy, stupid,”—prevails; in political theory of punishment built
on Marx, the death penalty becomes a question of political economy of
crime beyond an individual’s responsibility. Moloch is spotted in the
unpoliced system of economic war called capitalism.
The whole theory and practice of revolution is another extreme story
not to be elaborated here, nor will I explore the hinted historical practice
of the socialist states that retained the death penalty and were in general
not very respectful to academically projected armchair standards of true
communism, keeping their repressive apparatus not only alive and well
but hypertrophied mostly up to its historical demise. We return to Marx-
ist discourse on punishment more generally, both in the genre of histori-
cal explanation of policy change in the next chapter and within a discus-
sion of sociological criminology in the penultimate chapter. I end this
section with some connected problematic remarks interesting within this
discourse, mostly having to do with its uneasy conceptual combination
with quasi-contractarian penal retributivism from the former section.
First, it seems that capitalism not only produces what it punishes,
which is a hypocritical Moloch-like thing to do, but it allegedly uses its
 Death Penalty 87

repressive power organized via state to keep the bourgeoisie in power.

The death penalty, however, has an uneasy function in that setting, per-
haps fitting better into decisionist frameworks ideologically informing
strict dictatorships less concerned with an efficient political economy. A
Foucauldian might say that such a political rationale of the death penalty
is flawed, since with its éclat it brings a countereffect of horror and sets up
the terrain for the questioning of power. So, to jump to the next chapter,
the modern world tends to cynically leave it behind, except where the
propensity for local lynching and religious retributivism or some other
ideology (and perhaps a natural or political catastrophe shaking societal
order) should coincide. This dilemma of killing in the name of high jus-
tice is exemplified in the relatively recent statements by the U.S. Ninth
Circuit Court chief judge Alex Kozinski, echoing the problematic dis-
cussed by Murphy, that is, of Marxism and retribution (by death) going
together. The judge argued for the firing squad instead of the lethal injec-
tion (if the guillotine is not possible): “But executions are, in fact, brutal,
savage events, and nothing the state tries to do can mask that reality. Nor
should we. If we as a society want to carry out executions, we should be
willing to face the fact that the state is committing a horrendous brutality
on our behalf. . . . If we, as a society, cannot stomach the splatter from an
execution carried out by firing squad, then we shouldn’t be carrying out
executions at all” (Dolan 2014).
If we accept retributive idealism and the fact that we live in the practi-
cal world of fallible agents, omissions, and mistakes, the question is of
course the following: What would Kant say on the problem of botched
executions that fueled the above citation (the long and painful death of
“the executed” by the lethal injection, similar to the historical misfires of
the electric chair, and so on)? What would utilitarians say, at least those
who accept capital punishment? This doesn’t seem to be a mere sophistry
but the problem in any realistic setting, even for the utopian projections
of a well-ordered society, eliminating the capitalist statistics of crime and
keeping the death penalty as a penal treat for free and autonomous
agents who still choose to kill each other outside of economic need. We
should remember that even hanging does not always work, producing
aporias for the legal order and political theory. In the recent case from
Teheran, the death convict who lived through the hanging was spared on
simple formal reason. “In our law, nothing has been said about a person
who survives hanging after 24 hours. Since the sentence was carried out,
there is no reason to repeat the sentence,” explained the interviewed
lawyer Abdolsalmad Khoramshahi (McVeigh 2013). It is an ordeal sur-
vived and life granted. To use Benjamin’s phrasing, fate has indeed
shown herself imperiously in such a sentence that could kill off the death
penalty itself on practical grounds.
On the other hand, Bohm, following Marx’s abolitionism more closely,
doesn’t have this problem. Well before Pope Francis entered his high
88 Chapter 1

office, Bohm dealt with the subject of Marx and the death penalty reached
the following optimistic conclusion: “If Marxists and the Pope can find
common ground on the issue of capital punishment, then it seems inevi-
table that those in the middle of the two political extremes eventually will
also see the wisdom of abolishing the death penalty” (Bohm 2008,
290–91). Even if extremes change through time, as this book tries to show,
Marxism and Christianity seem to share quite a lot, not only in Latin
America. This is perhaps evident in this version of political theology, not
affirming punishment and mercy but playing on the cards of prophecy
and eschatology, eliminating from existence the original sin as a figure of
theological anthropology warranting punishment. The decision of the
almighty sovereign preceding individuals, the (entrusted) right of the
state, the calculus of death, the sacred democratic will, the false preten-
sion to divine powers, and the suspension in promise of the better fu-
ture—these are different figures of the legitimization of the death penalty
reviewed thus far, not comprehensive but representative enough for a
chapter probing the extremes. However, before concluding, to spice
things up a bit, I want to test the discourses on the death penalty within
two fictional discursive frames.

A SHORT FICTION ON DEATH: THE CAT AND THE RAT CAUGHT

IN A POLKA OF DESTINY AND CHOICE

Is coldness the problem? Is the state, then, the coldest of all the cold
monsters, as uttered by Zarathustra? Is coldness (of cruelty) beautiful?
Can tragedy sometimes be beautiful? Can the naturalistic feces and urine,
popularly called shit and piss, coming together from an indiscernible
cloaca of the scared spasmic human relaxed to a corpse after its life has
been squirmed out on the carceral pendulum, be part of this suspicious
beauty? Can such repulsive grotesque be in any way associated with the
metaphysical delicacy of life’s fickleness?
These strange questions work together with the grimly realistic fic-
tional depiction of an execution from the late 1980s Poland. The plot and
the symbols are important for Krzysztof Kieślowski, the author of the
novel, and important for the context, to a certain extent. Kieślowski
filmed one of the arguably best TV series in history, preceding his other
more famous francophone masterpieces. Every one of the ten episodes
problematizes one of the Ten Commandments, set into the contemporary
setting of 1980s Poland, a Catholic country where communism is about to
collapse. At the time when the fifth episode of the Decalogue is released,
dealing with the sanctity of human life through the fundamental “Thou
shall not kill” precept, the death penalty is still on the run and the official
ideology is Marxism-Leninism. The episode was developed into a feature
 Death Penalty 89

movie, A Short Film about Killing, along with the following episode, which
dealt with “Thou shall not commit adultery” (A Short Film about Love).
Kieślowski is a master of symbols. This trait of his work is important
for the interpretation of his artistic statement on the death penalty. It is
not easy to be one of Kubrick’s most favorite directors. The cited reason is
that Kieślowski manages to dramatize the idea (see Kubrick 1991, vii),
instead of exposing it directly as a spoken pamphlet or essay (unlike, for
example, Littell, who is working in another medium as a disguised essay-
ist, similar in that sense to Huxley). Symbols are a very important part of
the Decalogue. For example, pigeons flying up to the light through the
socialist mammoth building around which the action revolves, a scene
that appears in the first episode dealing with “I am the Lord thy God” or
a homeless man sitting alone near a frozen lake in its opening scene, most
probably symbolize souls and the Almighty himself in the ruse of the
homeless contemplator; the lake will, contra science, swallow the beauti-
ful kid as destiny swallows human lives, speaking not against physics
itself but of fallibility and limited understanding of men doing the calcu-
lus.
Krótki film o zabijaniu, which will exhibit similarly challenging sym-
bols, is greenish and unsettling. It was filmed by Slawomir Idziak, who
has collaborated in many of Kieślowski’s masterpieces. The edges are
darker; green constraining lenses together with bleak sepia tones evoke
some kind of sickness, unlike the oversaturated contrasts from the likes
of blockbusters or CSI Miami. It is perhaps the color of the Eastern Bloc
communism, the one that was later brought to the viewer by Cristian
Mungiu’s movies on Ceauşescu’s Romania. After I introduce the ele-
ments of plot and action, I single out the important symbols and offer
possible interpretive narrations that are not in the material itself but are,
as is often done in good works of art, left to the interpreter’s efforts, and
associate them to the expounded political theologies of the death penalty.
The plot is divided in two symmetrical parts, equivalently grotesque:
one revolves around a murder and the other around the execution of the
death penalty. In the first part, we meet Jacek Łazar, the protagonist,
committing seemingly gratuitous acts of violence as he wanders around
Warsaw. For example, to a watching granny’s displeasure, he theatrically
scares the pigeons she is feeding on a city square. More seriously, he
throws a rock from the overpass and causes an unspecified, perhaps fatal,
traffic accident as can be inferred from the sounds of breaking glass,
screeching brakes, and crashing metal. He reacts to the possible advance
of a homosexual in a public bathroom by hitting him as he passes by.
Malicious actions and reactions are paired with Łazar’s inaction when a
conscientious person would do something: as he witnesses chasing, hit-
ting, and pulling into the building of an unknown man by other men, he
doesn’t react to the possibility of murder. This all culminates in a pre-
meditated strangling of a cab driver, who on Łazar’s advice takes the
90 Chapter 1

longer and desolate path while Łazar is bitterly clenching a piece of rope
in his hands. When the cab driver begs, still alive and catching air after a
session of strangling, he is ultimately smote by a nearby rock and his face
viciously crushed to death. Łazar covers up his deed by throwing the
body into the river. He takes the car and shows off with it to his female
acquaintance, who naturally wonders where he got it. The second, short-
er part follows Łazar’s unsuccessful defense in court. He is then executed
by the state. The coldness may be worse than the struggle from the first
part, since the state acts impersonally, orchestrating a series of men who,
sometimes hysterically, sometimes calmly, follow the stern protocol. Bu-
reaucrats are mandated to kill, perhaps at their own private psychologi-
cal expense. It is the situation of power of all against one, as in Robes-
pierre, the speaker and the practitioner. Surrounded by guards in the
prison, after his sentence in the name of the state has been read and he
was insecurely blessed by a priest, Łazar, trembling, puffs a few smokes
of his last cigarette (without filter). As a trapped animal, he desperately
tries to escape and immediately afterward he is frantically put to rope
and hanged. His excrement drips into a practical plastic tray put in the
niche beneath the prison pendulum. Ashes to ashes becomes mud to mud
in this film, which had opened with shots of a dead rat in a greenish mud
puddle. The characters and their relations in a relatively simple triangle
are another essential element necessary for interpretation.
Alongside the young Jacek Łazar, the other parts of the triangle are his
victim, the taxi driver Waldemar Rekowski, and Piotr Balicki, a young
idealistic lawyer, fresh from the bar exam, who is compassionate about
Łazar and unsuccessfully tries to save him. Waldemar is more of an in-
stant karma character, as readable from his everyday routines. He es-
chews a falling object at the beginning but it seems that he is hit back by
destiny, since he advances sleazily to Jacek’s sweetheart, refuses to drive
many needy customers, and throws his wife’s sandwich through the win-
dow to feed a stray dog with it (which can, to his wife’s probable dis-
pleasure, be read as the singular act of compassion from that hardened
character). Waldemar also blows his car horn, scaring a man out walking
his dogs. He doesn’t only refuse to drive drunkards, but a pair who are
freezing in the cold, in a typical act of petty malice, which he performs in
a comfortable and cynical way according to the defining traits of his
character. Waldemar is not exactly an evil mastermind but a stingy mid-
dle-aged grouch. Nor does Łazar strike the viewer as evil. He simply
leaves an impression of a lost fellow with no plans and possibilities. He is
but a poor wanderer from the countryside with no observable talents
(and no knowledge of foreign languages, as we learn from his random
interactions in the streets of Warsaw).
However, as Łazar’s character is revealed, we learn that something
from the past is tormenting him. He develops a photograph of his sister
and, after he has killed Waldemar, violently pulls out the car radio as it is
 Death Penalty 91

playing children songs. Ultimately, we learn that he and his friend were
drinking back at the countryside and his friend struck and killed his little
sister with a tractor. Łazar, looking a bit like the Sex Pistols’ bass player
Sid Vicious, thus emerges almost as an emotionally disturbed village
idiot killed by the state. If we exclude Kantians and the Polish judicial
bureaucracy, Łazar doesn’t strike a viewer as an archetypal villain to be
executed for good. The state holds him responsible legally, he seems
somewhat morally responsible, but first and foremost his responsibility is
of a metaphysical or theological character if we accept doctrines about
predestination: he got pretty bad cards, didn’t have much luck and in
such circumstances he has himself finished the job. Piotr, finally, circles
around freely and merrily on his scooter. He successfully passes his bar
exam and starts a promising career. He has a pretty wife, who is expect-
ing a child; his son is born before Jacek is executed. He did his best to
save him, and the decent judge gives him credit for that, but in such a
case of gratuitous and brutal murder with a subsequent carjacking or car-
marauding, the death penalty was virtually the only outcome possible.
Now that the plot and the characters are presented, we can get closer
to the gist of the matter. The paradox is that the film is nothing like
historical epics with myriad interesting personalities, molded like War
and Peace, or some mind-boggling crime thrillers, but minimalistic in the
number of characters. It offers a simplistic narrative that is interpretively
very rich, mostly because of the unspoken symbols. Symbols abound in
the film and can afford to be slightly incoherent, as is life itself, since they
are not explicitly stated as such, as the ideas in a pamphlet. Some may be
overseen and some may be read into the material even if they were not
reflected upon by the director and put in the film consciously. Already
the names of the characters are telling. St. Peter (Piotr) the Redeemer is
the keeper of heavens. Waldemar may be associated with peace, prosper-
ity, and earthly rule through the Slavic Vladimir, also present in Croatian,
but is essentially rough sounding in the given version, perhaps even
demonic in terms of Slavic pagan mythology. In any case, Waldemar has
a devil-like jack-in-the-box springing around in some shots of his cab.
Łazar (Lazarus) is a biblical character erected from the dead and the
reason why I mostly referred to Jacek by his surname.
Beyond the three protagonists, there is a god (or at least a guardian
angel) in the film. In this movie he appears as a construction worker in
something like a jumpsuit. He is played by the same actor who is glaring
at the lake that takes the beautiful young life of the twelve-year-old son of
a divorced atheist professor of linguistics in the first episode of the series,
the one about God jealously excluding other gods and idols. 10 In A Short
Film about Killing, he happens to pass by before the killing and nods his
head on the street, seemingly conveying a “Don’t do it” message. Later,
he appears in prison carrying a ladder, a disinterested worker doing
some fixing within the prison. And there are quite a few symbols of
92 Chapter 1

destiny. For example, gypsy women appear in front of the cantina where
Łazar drinks and eats, and prepares his rope with a knife. The thick glass
of the cantina windows is the place where he throws the remains of his
food to the young girls laughing at him, perhaps reminding him of his
dead sister. He cannot connect to them. The brown stains look like the
ones he produces in his death rattle later, and the ones from the opening
scene where a dead rat is seen in the gutter to be paired with hanged cat
and the children running away, laughing and playing as the shot devel-
ops. On the other hand, we saw Waldemar in the beginning nearly hit by
a falling object, another allegory of destiny that was so important for
Kieślowski. And, finally, what is a more appropriate vehicle to put desti-
ny in but a taxi circling around and picking various random people,
escaping those who might only puke in the car only to find those who
will kill you?
Now that we know the plot and the characters, and have got a
glimpse at the grid of symbols interwoven in the movie, we can try to
answer the “Kubrick question”: What are the ideas dramatized and con-
veyed through these characters and the development of events spiked
with symbols? Since the symbols, as I have hinted, are not necessarily
coherent, different interpretations may emerge. As a simple practical ex-
periment, I watch the film every year with my students in Zagreb. Usual-
ly, something new jumps up in the discussion, which takes a different
direction than those from the previous years, perhaps a new detail gets
highlighted, changing the expected interpretations. I now constrain my-
self to four relatively simple readings, associating some of them with the
discourse of political theory from prior sections.
A first reading is the one of simple contextualism. Although it is for-
mally not a pamphlet, and not written and directed as such, contextually,
whether one wants it or not, it is a more or less subtle pamphlet to abolish
death penalty in a crumbling socialist state. In Poland, as in Yugoslavia
after the initial repression and executions against various brands of “peo-
ple’s enemies,” capital punishment was not frequent or overused, espe-
cially in the closing period of the communist regime, but it was there.
Some murderers were still hanged in Poland in the 1980s. After the film
was released, the death penalty was suspended. Of course, we should not
like to fall into a post hoc ergo propter hoc logical fallacy: it was not sus-
pended because of the film itself, but the film was a part of the climate
and a statement on the matter. And after the winds of change blew for
some time, it was abolished about a decade later. There is a case that links
that time to the present, associated with the abolishment of the death
penalty. Mariusz Trynkiewicz, a physical education teacher as well as a
serial sex offender who molested and killed four teenage boys in June
1988, was one of the last condemned to death. His death sentence was
commuted to the highest available prison term of twenty-five years in
1989, the year after the film’s release. Trynkiewicz’s release was closely
 Death Penalty 93

watched by the public, especially by the tabloids, regularly calling him

“Satan,” and he was quickly arrested again, after his due walkout from
prison in 2014. I do not want to enter the lurid and administrative details
of the case but only use it as a sign of another time, when the death
penalty is advocated in its absence, citing the cases such as this one. After
a quarter of the century, the film can be considered a historical anti–death
penalty statement, paralleling a murder by a killer and a murder by the
state, but it looks as a charmingly anachronistic document obtaining its
artistic beauty by the lucky fact that the horror was there to abolish it. All
its complexities and wider context of the series aside, the first reading
thus points to the film’s historical function or meaning, but general read-
ings out of this immediate context, not losing their force to the present
day, are certainly more interesting.
The second is a reading that highlights the autonomy of the subject. It
is perfectly compatible with most of the portrayed edifice of political
theory of the death penalty culminating with Hegel, before its turn to
Marx. Symbols in this sense are invasive, although we should probably
remember from the introduction that good and evil aren’t necessarily
religious categories or concepts implying autonomous choice of the indi-
vidual. God suggests to Jacek that the killing of a cab driver would be a
bad choice, and then just passes as does the confusion and indecision
from Jacek’s face. It is, as the reader remembers, the same guy from the
first episode staring at the ice that is going to crack, but this may be, as
Kubrick said, a way to dramatize an idea in a symbolically familiar and
yet original way. The construction worker playing God or symbolizing
good, and the titillating plastic car accessory playing the devil or symbol-
izing evil: it is a way to say that Jacek can choose and that his conscience
is there before the act. It is a moment of choice, realized into a wrong
choice after which the devil happily titillates as the bad things are done.
The use of personified higher powers that observe people suggests that
people have choice. Consequently, they also have responsibilities. Then,
perhaps, death can be warranted. Catharsis, however difficult, purifies.
Peter, the rock left by the Redeemer, is the nursing instance, bringing
human comfort more than judicial help. In this reading, it is not the crime
punished by the state or the alleged intimidating effect of the death pen-
alty that is at stake but the retribution following an autonomous choice to
take life of another person. It is Kant watching a Warsaw cab and coldly
directing the second part of the movie as a sad but necessary moral and
legal outcome.
The third reading might instead highlight destiny. Things happen in a
causal chain. The death penalty is a political machine that adds horror
and perhaps some strange tragic beauty to human stories, making their
struggles and emotions serious, but its legitimization cannot be rational,
built on the autonomy of human agency. The horror of violence and the
breaching of the “Thou shalt not kill” commandment is to be seen on
94 Chapter 1

both sides of the plot. Both are murders, the killing of Waldemar and
execution of Jacek. And both can be politically stopped, more conse-
quently obeying the moral commandment, transferring it to the political
sphere of public policy making, pairing the abolishment of the death
penalty with intelligent preventive measures aimed at individuals who
could harm others. Concerning the first murder, we see psychology and
psychoanalysis, dealing with the behavior, pain, and guilt of a wounded
individual. Violence is an expression of his deeper problems, of violence
hidden and transferred to an unlucky victim. The state appears to be a
masochist’s puppet, taking his cues, as in the first chapter where self-
punishment as a border concept of this treatise was mentioned. Unlike
the biblical character brought back from the dead, Łazar wants to die
since he cannot cope with guilt and suffering anymore. Lonely, deprived,
desperate, his actions are triggered by the making of the portrait of an
unknown girl on the streets of Warsaw. His sister died in the field in the
countryside. It was all there in the beginning, and it only developed
before our eyes to an inevitable horror that serves as a lesson for future
ameliorations.
The fourth reading, then, adds some sociology to this psychological
skeleton and then some political theory. The central symbol is given at
the very beginning. It is perhaps the master symbol combining charged
metaphors to depict the problem it is dealing with. With some unsettling
music and through some green filters, we see a dead rat. We then see a
hung cat on an improvised gallows. And we see children running away,
perhaps rushing to engage some other cruel game of which more respon-
sible grownups might disapprove. A cat killing a rat to be killed by chil-
dren: this is now not at all a Kantian story, and it is even less utilitarian.
Cats and rats don’t have a choice. They are not moved prospectively by
children’s actions. But a society—a group of children—has some choice.
Paradoxically, if an individual has no choice (cats usually kills rats), a
reckless society has a collective choice. And even if it does not, it may one
day: children will grow up, hopefully losing their immaturity. Or, they
are the rational conscientious public watching the film, scolded for mis-
behaving like small children. They should feel guilty for such an irre-
sponsible group behavior; the death penalty is not something done easi-
ly, only to run away from its implications. Probably some of the kids did
the hanging and the others watched, offering at least passive legitimacy,
if they did not shout sadistically, wanting themselves to hang the cat. The
point is that within society there is such thing as politics, the political
state. The political context is in the exposition of the very process of
hanging we haven’t seen in the beginning. The emotional Jacek is
haunted by his trauma, not able to escape his suffering. We remember
that he has no observable talents or occupations, as he wanders the city.
In prison we find out the full story. And we take a peek behind the
curtains of a death chamber. During the execution, in another symbol, the
 Death Penalty 95

curtain is first stuck and then falls down during the nervous execution. It
is a small in-film metaphor that encases it by saying, in essence, “By this,
state cruelty is exposed.” We usually have some idea how the poor rats
are killed, but now we have seen how and why the cat was hanged. The
film might thus say destiny is something that can at least partly be
changed, bringing together first two readings as a statement of political
autonomy of a community to make its choices in context: we can choose
between penal options, and we should abolish the death penalty.
Finally, a specific touch can be added to the combination of sociology
and political theory, with or without the historical context. A Marxist
reading at first doesn’t seem as a best logical choice, since the cats and the
rats are neither rich nor poor. But the discourse of the film makes some
suggestions, and we should, after all, not take the “literal” interpretation
of the symbol too far (some cats tend to be economically, socially, and
psychologically deprived, that is, quite alienated, and we may envisage
some filthy rich rats). It is not the pamphlet, to reiterate, but the idea that
appears as the part of the dramatization, not necessarily pontificating
upon the film as a whole. However, if we choose to pair symbol with
discourse, what do we get? We get a post-Hegelian reading, negating the
negation of the negation, that is, an orthodox Marxism that is the official
ideology in then Poland. Piotr’s defense efforts must have been fabulous,
but they are not depicted in the movie. We never hear the defense, which
is another subtle dramaturgical ingenuity of the film. But we hear Piotr
taking his bar exam before the tripartite committee, answering the ques-
tions about general and special prevention. There, Piotr recites the known
refrain, asked to ground his abolitionist idealism in authoritative sources:
“Ever since Cain . . .” Does he need to name the author, he asks. It isn’t
necessary, the committee members approvingly smile.
Contrary to German idealism, freedom is arguably given only to
some; many are deprived of it, and real socialism, in Poland as in other
places, hasn’t quite fulfilled the expectations, making Berlin’s positive
liberty into tyranny paired with economic lagging behind the West. Pi-
otr’s life is seemingly full of possibilities and he is further kissed by luck:
smart and handsome, we again see him as he circles on his small moped
through Warsaw, looking a bit like Hal Foster’s Prince Valiant, endowed
with a chubbier face and emanating both idealism and satisfaction of a
good and happy life. In the end, the last scene of the film, Piotr cries on
the sunny green field, perhaps feeling both lucky and sad to be alive. Is
Łazar there? Is his sister there? And where is poor Waldemar? Piotr tried
to change society, to bring some light to the bleak city that we see only
through filtered green nauseous lens, not believing that retributive pun-
ishment can intimidate or ameliorate anybody. It is one kid waiting for
the others to wake up after he has unsuccessfully, within the confines of
the game, tried to persuade them not to kill the cat. It is a political escha-
tology of a better society where metaphors fall apart and cats and rats
96 Chapter 1

live together in peace with children who have matured, as in a bucolic

picture from the pages of the Jehovah’s Witnesses’ religious magazine.
After rewatching the film for the purposes of writing this section, I
couldn’t make a definite choice for one reading or the other. It seemed to
me that they flow and blend into each other. All of it is in the film, which
makes it a good one. It is a mix of discourses that can be singled out
analytically in a thought experiment or a caricature: exogenous factors
leading to death, as well as the metaphorical twenty-one grams of a soul
making a choice and bearing responsibility. Marx in context, with a tradi-
tional Polish nod to religion. Freedom of choice and coldness of God’s
view present at the unappealing “gallows pole,” where modern hangmen
cannot be bribed, unlike their feudal and provincial predecessors, and on
the green field where the dead lie and living ramble on in a dance—let’s
call it a polka, since the film is Polish—of destiny, choice, and politics.
Both a reformist political spirit of abolishment and expiation for the indi-
viduals involved in an unique strip of history that won’t repeat—as in
other complex discursive blends, such as Victor Hugo’s works, and may
not be mutually exclusive. The film today, filmed and released as the Iron
Curtain was falling down and the ends of history were projected, may
speak to us of a society that has lost more of its innocence, if it ever had
any.
In the other film made from a Decalogue episode, innocence is also lost.
Voluptuous Magda, played by Grażyna Szapołowska, and peeping To-
mek, spying her daily routines through a telescope, learn about love;
carnal love, for which the naïve idealists—Kafkian postal clerks—have
yearned, brings disappointment when finally offered as they premature-
ly ejaculate and attempt suicide. The consequence is perhaps an erection
of the mature and responsible self versus cynical eroticism embodied in a
Magdalene figure. I do not dwell into the souls of immature clerks and
(what they think is) love, nor apply that metaphor further to capital pun-
ishment, but Kafka’s dreams and nightmares seem interesting for the
political theory of the death penalty. Can we learn from Kafka about the
death penalty outside of the familiar stabbing to death—“Like a dog,” as
K exclaims—that ends a grotesque, up to that point seemingly incessant
bureaucratic process?

THE BROKEN MACHINE OF THE ABSCONDED SOVEREIGN: OUT

OF THE PENAL COLONY?

The punishing machine writes on the subject’s back, killing him without
a clear higher purpose. It is perhaps not only a convoluted curse of writ-
ing or a parable on language. An allegory is multifaceted, coming from
the classic who wrote Brief an den Vater, dissecting the hard relationship
with his father and, more famously, about uneasy transformation of a
 Death Penalty 97

human being to vermin (Ungeziefer). To say it speaks of the complexities

of human condition of and sadomasochism is never wrong, but not too
enlightening either. Kafka’s In the Penal Colony obviously has religious
and eschatological layers. For our purposes, it is an allegory of punish-
ment that has changed historically and could disappear, especially of the
death penalty as an empty simulacrum of the past. This is at least one
possible reading of In the Penal Colony (In der Strafkolonie), a short story
we use to shed another light on the subject matter of this chapter before
conclusion.
The bed and the harrow made of glass and spiked with needles: these
are the elements of punishment and the essential procedure is simple.
“The long needle does the writing and the short needle sprays a jet of
water to wash away the blood and keep the inscription clear” (Kafka
2003). An automatic machine and a gagged body lying face down. Along-
side the two pissing statues outside, which water a pond in the shape of
the Czech Republic and at least initially had nothing to do with the mu-
seum, this gothic machine from the penal colony can be found in the
Kafka Museum in Prague. It tortures the subject by inscribing his crime
into his body, in the manner of a Foucauldian sovereign. Punishment
functions as a mark. It looks like the upside-down bed of needles, a slow-
paced horizontal iron maiden. As announced, the machine in the story
does more serious stuff than talk on request in the manner of museum
pieces. As is sometimes the case, the torture machine is also an execution
gadget: after inscribing with pain on the back of the convict the details
about how he has broken the law, he dies after twelve hours of such a
session, executing one convict at the time. 11
Ending with death, capital punishment conceived as a tattooing ses-
sion is not simple calligraphy but a labyrinth. However, in that labyrinth
of law and verdict, one thing is clear from the start. It is an axiom oppo-
site to the tenets of the due process. “Guilt is always beyond doubt”
(Kafka 2003) is the basic principle of the execution, not only a psychoana-
lytical fact, but a description of historical working of inquisitorial in-
stances, at least a stereotypical presentation of them that we have ac-
quired from our Whiggish history of justice and that carry a big grain of
historical truth. Perhaps some procedural guarantees, citatio and defensio,
are inscribed in (or by) the machine: it has to write something down on
the body of the condemned, perhaps his own defense, taking his bodily
deposition in its own way. After all, the sentence is carved into the body
of the condemned and not proclaimed before, making the knowledge of
the sentence a direct experience: “It would be useless to give him that
information. He experiences it on his own body” (Kafka 2003). But how
to interpret this for our purposes?
We should first remember that In der Strafkolonie was written at the
beginning of the First World War, revised and read aloud in Munich in
the middle of it, and finally published in written form year after the war’s
98 Chapter 1

end. Its title may speak of political community as a penal colony. The
twentieth century is a century of big changes, of quickened history and
the dissolution of monolithic historical political forms. The political com-
munity as a penal colony, the theme of our political theology, is crum-
bling in Kafka’s story. The penal machine has worn out cogs and finally it
kills its operator, although its author is long gone, mystified in the politi-
cal legends and unsure interpretations. Archetypal characters in this dys-
topian setting are but a few: the officer administering the machine in its
ritual twelve-hour working cycle and the traveler asking questions and
witnessing its malfunction. The other two are bystanders: the carefree
condemned unknowingly waiting to be executed and the soldier in the
usual role of the accessory but important character, most likely symboliz-
ing the still existent armed forces of the state that enforce order. This
historical switch is seen in the modus operandi of the machine as a penal
form.
Historically speaking, its functioning is hybrid: it is placed somewhere
between pain and discipline. It makes the subject know his sin; it per-
forms an internal work on the soul but still works through the body. The
catharsis takes place through pain and death. A Foucauldian reading
might see in the story the demise of the sovereign power, while a Fou-
cauldian theoretical association of knowledge and power would in this
procedure find metaphors (not too far away from literariness) about in-
scription of sovereign knowledge of crime on the body in a still primitive
discourse spending power on torture. A new commandant, a character
that is discussed but not corporeally present in the story, simply leaves it
working. It is a matter of institutional inertia. Within the chosen interpre-
tive frame, this tells us that old penal methods continue like zombies.
Penal forms sometimes break down with no crowd to witness the mal-
function, or continue on the verge of running amok, working on its own
without clear contemporary political mandate. The machine was invent-
ed by the institutors and rulers of the community now absent, and in this
unclear situation it keeps going, to finally break, catching its operator, the
officer. 12
The frightened or potentially rebellious crowd truly irritated by the
penal semantics of the machine, scared of it or hating it, has long ago
dispersed. The narration informs us how the machine was once glittering;
its spare parts were abundant. The old commandant had the clear role of
a sovereign speaking to the crowd and taking part in an exemplary pun-
ishing: “Before hundreds of spectators—all of them standing tiptoe as far
as the heights there—the condemned man was laid under the Harrow by
the Commandant himself” (Kafka 2003). Denouement can sustain our
interpretation. The commandant’s absence is telling to the exploring
traveler. “I fear the end of your tradition is at hand,” he concludes omi-
nously. The officer has nothing to hide when nostalgically speaking of
the old commandant himself setting the machine: “I completely lack his
 Death Penalty 99

power” (Kafka 2003). The outcome is logical. The condemned is released

and the officer as the operating machinist is willfully caught in the ma-
chine he once operated, programming it to write justice on his back.
However, in place of slow tattooing leading to catharsis, he is simply
stabbed and butchered, as one more Kafka character dying like a dog
under knives.
And there is one more important interpretive cue. The officer kept the
esoteric blueprints of the machine. “There exists a prophecy that the
Commandant will rise again after a certain number of years and from this
house will lead his followers to a re-conquest of the colony. Have faith
and wait,” he explains to the inquisitive traveler (Kafka 2003). The sove-
reign and his infallibility are thus offered in the messianic layer of the
parable. The traveler leaves alone on the boat after visiting old comman-
dant’s grave and its tombstone. He doesn’t allow the soldier and the
condemned to embark with him, leaving them in what was once a penal
colony. Unlike the more normative tones of the film that tune empirical
terrain for the justification or delegitimizing of the death penalty, Kafka’s
story gives a bit mystical archetypal narrative of eschatology of punish-
ment. It speaks of crumbling historical forms of punishment, and of
forms of political power and accompanying political theory that are wan-
ing or gone, incomprehensible or unacceptable for the modern explorers
of the old subject. Its prophetic value is ambivalent. The punishment will
return like the old gods and kings or simply disappear, leaving the world
a bit different. For Agamben, the latter option offers an optimistic new
start without politics as we knew it, intermingled with law and mythical
violence of punishment, returning us to Benjamin before the very conclu-
sion, working some more on these motifs that, unlike Marx, render uto-
pian political change from programmatic political action to the mystics of
eschatology: “Like the freed convict in Kafka’s Penal Colony, who has
survived the destruction of the machine that was to have executed him,
these beings have left the world of guilt and justice behind them: The
light that rains down on them is that irreparable light of the dawn follow-
ing the novissima dies of judgment. But the life that begins on earth after
the last day is simply human life” (Agamben 1993, 6–7).

CONCLUSION: THE BIOPOLITICS OF EUTHANASIA VERSUS THE

DEATH PENALTY

Fiction is deceptive. It is a theme we further inspect in the sixth chapter.

But so is any concrete, real example sometimes forced upon a viewer,
reader, or listener, with the ambition of general representation (“the case
is typical”) and a political mandate (“we should tailor a policy according
to it”). Most fictional and real examples that are minimally convincing
contain a grain of truth and often lots of manipulation. They can probably
100 Chapter 1

be seen as a small confidence trick, fooling their mark by putting other

truths in brackets. For example, instead of a modern Polish Lazarus in the
Decalogue, one can use another case, illustrating expiation and successful
catharsis as the aspects of capital punishment. Instead of an ambiguous
document of a young and lost perpetrator in his early twenties, more of a
victim himself than a cruel monster, one can digest a real spiritual ro-
mance of the death penalty that brings peace both to the killer and to the
victims. This is, at least in one possible reading, sticking to the plot essen-
tials, found in an American death-row drama from 1995, Dead Man Walk-
ing, starring Sean Penn as a killer to be executed in Louisiana and Susan
Sarandon as a nun who develops a spiritual bond with him. Endowed
with a French surname, an inevitable part of Southern gothic mystique
exploited to the present day in crime fiction, Matthew Poncelet appeals
his death sentence for murder, insisting that his partner killed the young
couple. He finally confesses his crime to Sister Helen Prejean and seeks
forgiveness from the families who sought retribution. On top of that, they
received a catharsis, since they also prayed for the killed sinner who,
through the help of spiritual leadership of said nun, realized atonement.
As the prayer closes the film, the point is that the death penalty brings the
dead man (or perhaps men) walking to a halt, and provides victims’
families with peace so that they carry on with their lives on this earth.
Unlike some possible readings of the samples from Kieślowski and
Kafka, this film is consonant with theoretical contracts and political theol-
ogies that may lurk behind the common sense of political communities. It
is a statement of political theory as catharsis. We have seen its variations
and meanders, often focusing on the revolving theme of the implicit sanc-
tity of political contract and expiation of the political sinners, as one of
the key pieces in the jigsaw puzzle of the discourses on violence and
punishment of political theory dealing with the death penalty (see table
1.1 summarizing the narratives from the chapter sections). Political theo-
ry hides what Benjamin highlights. It is an interpellation by politics, and
its political theology may give power to decisionistic sovereign and every
actor of the community acting in his behalf, or to egalitarian parties of the
contract who lose their postulated natural liberties after signing the cove-
nant with their blood. Political theory justifies state violence against those
who commit violence or it sometimes nominally argues against it, prom-
ising a better future, while at the same time it erects a historical mythical
order with carte blanche for expansive political violence against various
ideological and tactical enemies and in fact practices the policy of boot
stamping on the human face. The will of the people or the will of God by
the mercy of God, la volonté du peuple or la volonté du roi, par la grâce de
Dieu. These two antagonist dogmas, as Saint-Simon called them, are
equivalent from the perspective of death penalty. There are worlds be-
tween monarchies and democracies, as political scientists and political
philosophers know, but Rousseau and Cortés come to same conclusion
 Death Penalty 101

about the legitimacy of the death penalty. This section is, however, inter-
ested in the present and future of this well-entrenched political dogma.
“You are banished from Rohan under the pain of death,” the Worm-
tongue meekly shouts at a knight who did not bend his knee before the
powers of darkness, protecting the legitimacy of the realm against the
poisoned and seduced sovereign father. Although sovereigns kill and
banish sometimes, this sentence from the second tome/part of Tolkien’s
written/Jackson’s filmed saga, combining the two extreme penal modal-
ities of the past, doesn’t make that much sense nowadays. Is this dis-
course, then, antiquarian? I want to toy a bit with the idea that potestas
vitae ac necis, the right to put someone to death, will be removed from the
sovereign as it was removed from the father, not necessarily as political
power but as a legal right. It is a story about Lapenna’s theoretic pleading
to deprive the other sovereign—that is, the political one—from his right
to impose death (which was generally long ago, again only legally, taken
away from private subjects, families, and clans). And this story may un-
fold before our eyes while serious academia, rationally utilitarian in spir-
it, may keep discussing the discarded discourses focused on questions
such as “Does the death penalty deter others from doing crime?” Or: “Is
it retributively just in general or in special circumstances, such as the war
on terrorism?” Before wrapping up, and some final sobering up with the
usual help of Habermas, who is usually ready for such tasks, I offer a
short illustration of these issues with the help of two vignettes, one hav-
ing to do with the medical discourse questioning the death penalty, the
other with the assumption of subjects’ right to kill themselves, also relat-
ed to medical and other discourses of the professions. This is a biopoliti-
cal complex, a theme that acquires further presence in the fourth chapter,
provoking the old gods that long ago installed the penal machine.
Death and politics, brought together, offer some interesting paradox-
es. One of them is associated with the historical changes in their mutual
relations. Sure, we all still die, and many of us engage in politics, but
when politics was different, death was omnipresent in a different way:
outside of disease, war, and natural catastrophes, it was regularly in-
flicted with authority and rendered as legitimate in the discourse of polit-
ical theory and religious doctrines. Interestingly, it was also punishable,
as far as that is possible when the power to take their own lives was
insisted upon by the subjects who attempted and indeed “committed”
suicide. In the meantime, death has become sanitized, and to an extent
given back to the subjects since seemingly there is no need for the sove-
reign to govern their affairs. The old moral and political structure has
shown serious cracks, as in Kafka’s story.
Our first vignette is about medicine and the death penalty. A text
dealing with the dilemmas of physicians facing a government that ap-
plies the death penalty is illustrative of the developments interesting to
us. Historically, afflictive punishment was substituted with the idea of
102 Chapter 1

minimal pain up to a sleeping pill type of system where contact with

violent agency of the authorized agents is minimized, and chemistry effi-
ciently works as a technology of punishment (see Sarat 1999). Instead of
an executioner’s axe or rope, a cocktail of drugs is administered, and the
specific infusion rate and mixture puts the prisoner to sleep, then into a
coma, and induces a heart arrest. The ideal, often not realized in practice,
is caught by the following lines, comparing new technologies with the
outdated modern wonders of the past: “It would be so smooth, fast, and
painless that even Dr. Guillotin would be impressed” (Groner 2008, 895).
A Hippocratic paradox emerges in this new world of electricity and
chemistry employed to execute a human being: a doctor has to help the
execution because he can minimize the pain within the framework of
political will that has reached its decision, and at the same time he
mustn’t help, since he pledged to the unconditional protection of the
health of the patient, and the state is alas killing the patient. Beyond the
corpus of its expert knowledge and its application, the medical profes-
sion is as political as almost anything else, making decisions, rationaliz-
ing them, and helping some while not helping others, but in the narrower
frame of politics, put into the confines of a constrained definition, the
servant of a patient’s health has no choice. He seems subsumed to politi-
cal will and he must help as the licensed doctor who is, even if he finds it
morally questionable or even abhorrent, such as helping abortions that
are legally mandated if he works within the system of public health ser-
vice. There is a political division of labor: parliaments and supreme
courts do one thing, and doctors, outside of the micropolitics of health
and various tactical considerations, do another thing.
This is, as Groner writes, more or less “the invocation of ‘medical
situational morality’—the proposition that physicians can be released
from their ethical obligations in certain situations” (Groner 2008, 910).
However, if Kantian medical ethics is taken seriously, the problem is
reignited. “This conflict cannot be resolved without corrupting the funda-
mental ethics of medicine” (Groner 2008, 916): briberies, coercions, and
lies aside, the presence of MDs in the execution chambers may work as a
legitimizing and practical force helping the death penalty machine. The
point is not so much to resolve this problem from a particular perspective
or moral and political role (see Groner 2008, 917; Garland 2010, 67) but to
see that the entrance of technologies and professional discourses in the
sovereign game of death has changed its rules and may influence the
outcomes. Even the death penalty has become invested with bioethical
and biopolitical questions of the preservation of life and the minimization
of suffering.
The other vignette is about the morally controversial right to die. It is
about Ramón Sampedro, played by Javier Bardem in Mar adentro. His
constrained life of a quadriplegic after a diving accident is contrasted
with the shots of birdlike flying. His life ends as he, being filmed, drinks a
 Death Penalty 103

lethal cocktail through a straw, after almost thirty years of political acti-
vism to legalize euthanasia, defined as the right of person to end his own
life autonomously in a way he sees as dignified. Another paradox of the
modern ages whose dilemmas and spirit are caught already in the this
2004 film directed by Alejandro Amenábar is the following: generally, the
states that killed you legally do not allow you to kill yourself legally. On
the other hand, states that abolish the death penalty are more likely to
give larger euthanasia rights or endow you with the right to kill yourself
legally. Historically, the right of death and life is under the sovereign’s
authority. The rich practice and theory of sovereignty can readily attest to
that. And this mortal political God has a problem with suicide, an act of
his subject escaping political power, undermining it, offending it, and
diminishing it at least by a small increment by its own hand, which is
subtracted from the pool of sovereignty of united persons.
Ironically, tentamen sucidii, a suicide attempt, was consequently pun-
ishable, opening up the possibility for a caricatural practical advice: if
you try to kill yourself, you would do better to succeed, or the state will
punish you by killing you for not succeeding while making an attempt to
do so. A person who commits suicide successfully has placed himself or
herself outside the power of earthly sovereigns, and is in this model of
sovereign symbolic politics punished with the denial of ceremonial burial
or even with symbolic excommunication or post mortem molesting of the
body, as Cromwell’s corpse was unearthed and again left to hang or as
Rousseau’s and Voltaire’s remnants were stolen from the Panthéon in
May 1814 during the early turbulences of the Restoration. But this model
is a thing of the past: schematically, legal prosecution has been replaced
with medical treatment and instruments of parapenal discipline, even if
the penalty for attempted suicide formally remains buried somewhere in
the statutes as a practically inapplicable anachronism, in any case with
milder provisions than the possible death penalty that seems to be losing
the battle with the penal spirit of the times in the West.
On the other hand, euthanasia via the same lethal injection is allowed
in various cases, including genetic impairments and botched sex surger-
ies. A case from Belgium, where euthanasia was legalized in 2002 and
where more than 1,500 persons have chosen that way to die, offers an
illustrative extreme. Frank Van Den Bleeken, a serial rapist and murderer
spending decades in prison, was granted the right to euthanasia on the
grounds of psychological suffering, even though some of the victims’
relatives preferred that he rot in his cell. He was only one of the long-
term and life prisoners who made the request to the state to kill them. His
euthanasia was scheduled for the beginning of 2015 but then canceled,
and he was transferred to a psychiatric ward. A sovereign thus found
himself in an awkward situation, at the same time pressed not to kill and
pressed to kill by those who chose death as a better option than life in
prison, provoking new discourses in the opinion pieces of the day: “Like
104 Chapter 1

Van Den Bleeken, death row inmates who forego appeals are often hop-
ing to avoid the turmoil of living life in a cage with no possibility of
release. The justice systems in all such cases have already condemned
persons to death or eternal incarceration. Granting suicide, therefore, is
no denial of life” (Lennard 2014).
To generalize, constitutional changes toward liberal democracy and
establishment of the corresponding culture of human rights is a way to
dissolve the sovereign power as it was. When it kills, the state has to do it
in a sanitized way, with a low public éclat. Execution is not a sacral
presentation on the stage but an exercise behind the scenes, speaking in
theatrical categories. Euthanasia, on the other hand, is not a spectacle of
imposing the will of another but an execution of one’s own will; by defi-
nition, it is not a political spectacle but a private neo-stoical act. However,
as an activist issue, as a provocation to conservative public morality and
old norms of sovereign power, as in Sampedro’s case, it moves to the
front. Somewhat exaggeratedly, it may be said that suicide becomes pub-
lic.
It is time to bring to a close the story suggested by these vignettes that
pose a challenge to the sketched edifice of the political theory. The biopo-
litical trend, where various technologies and medical and other profes-
sional knowledge take part in the taking of lives or in assisted suicides,
seems to go against the old theory: if one wants to forfeit his life, the state
will allow it, while if it wants to take life against individual’s will, it may
still do so by following still functional constitutional and penal provi-
sions, but generally it has to do the latter more silently, perhaps to fade
away one day. Or it may persist in various historical, comparative, and
informal niches, practiced far away from the loftiness of theory and its
general legitimizations pronounced in a public discourse.
Various theories, as the next chapter argues, are quick to speak in
definite terms and pose, like Minerva’s Owl, as if they were writing with
gray on gray, but the empirical substratum makes them look not as com-
ing too late but coming too early, false, or distorted. In the practice of the
death penalty, if we switch from normative to more explanatory dis-
course, and move beyond political assassinations performed by political
agents outside of the law as a species of informal death penalty, some of
the death penalty’s persistence may lie in culture before general politics,
that is, in particular traditions, practices, and ideas in the context. For
example, some of the Polish 1980-ish culture is certainly caught by
Kieślowski’s series and films, and this has not much to do, to take an-
other example, with some of the cultural variables observable in the
southern and midwestern United States. Although one has to be cautious
with big obscuring concepts such as culture—a theme from the third
chapter and a recurring motif in the book—politics in the narrower sense
is perhaps secondary to these normative systems that in a way precede it.
 Death Penalty 105

Although these themes are analyzed from different angles in the fol-
lowing chapters, I should return to Lapenna. Some flaws are put aside,
such as some comparative brushes concerning the United States—often
treated with a lack of nuance from foreign authors, which is, ironically,
the same objection American authors sometimes get when doing compar-
ative politics of faraway countries—omissions of economy, and Marx, but
there is finally one very stimulating incoherence that has to do with the
discourses omitted, being outside of the narrower field of the political
theory manageable within a chapter. This interesting tension poses a
problem for abolitionist normative theorists. After reading Lapenna’s
book, one gets the feeling that there is an apparent incoherence between
arguing to abolish death penalty on the basis of human rights, and
psychoanalytical and anthropologic discourses diagnosing forces that
work for the death penalty. Simplistically, the death penalty seem to be
some sort of substitute for ritual sacrifice in a secular setting, a surrogate
bouc émissaire, a sacrificial goat serving for a Freudian transformation of
the horde into history, wrapped in a public liturgy of capital punishment
confirming political power. All of the violence by the state garbed in
political theory, as exemplified by Lapenna’s study that I have employed
in the construction of the skeleton of the chapter, seems to speak against
its abolishment, adding politics to anthropology and psychoanalysis. At
the same time, in this section we have seen changes in death and politics,
concerning biopolitical investment of death with modern discourses and
technologies and the question of euthanasia, suggesting that the democ-
ratization of death might be a subspecies of democratization of violence
evoked by Keane. From the hands of the unitary sovereign killing the
killers to sanctify the political contract, death is passed into the hands of
the subjects who can execute but one person as authorized agents. The
death penalty is abolished and given in the hands of sometimes disorient-
ed subjects to apply it to themselves. We may be witnessing the death of
an era of sovereign politics, its exit from the sacral to arrive at the spot
where Hobbes and Foucault agree on suicide (see Tierney 2006, 619), and
it may have nothing to do with the still-sacralized Thomas Paine’s com-
mon sense.
Since all the crazy airmen have to be grounded one day, and eschato-
logical pontifications might well be cut to proportion at the very end,
classical Habermas offers a nice rational corrective that gives the ultimate
profiling of the problem and of the stakes of the chapter or, more cynical-
ly, of the discourses of the theories presented. I started with Benjamin’s
text, observing how it has become a sacred text, at least in some academic
circles. Its status was less than hallow not long ago. For example, in the
eighth of his 1980s lucid lectures on the philosophical discourse of mod-
ernity, Habermas treats it en passant in his discussion of Georges Bataille.
He sees it as almost anticipating Bataille’s ideas on unscathed sovereign
 106
Death Rationale Discourse Ontology Politics
Penalty
Benjamin No (at least Something Sorelian, quasi- Subject caught Melancholic
if blood is rotten in the Messianic in the revolutionary
spilled) mythical eschatology of
violence history; good
Decisionism Yes Christological Authoritarian, Sinners and The game of life
purge of sin, conservative, dangerous and death
preservation of serious people; bad
the sovereign
politics
Anglo-Saxon Yes Natural right, Mechanicistic Reasonable Self-preservation,
Contract means of a pretension to people seeking contract of small

Chapter 1
leviathan, common sense safety: owners
entrusted moral sometimes
rights dangerous,
lumen naturale
Utilitarianism Depends: Maximize the Contractarian, Utilitarian menu Maximization of
generally pleasure, manipulative of the sovereign aggregate private
no, but yes minimize the governing good of self-
in extreme pain, preserve rational interested agents
situations the order individuals
Continental No Sacralizing Quasi-religious Public subjects, Politics as ends
Contract citizens, citoyens; good
negating the but tend to go
negation astray
Abolitionism No Desacralizing Secular Not responsible Ameliorating
death rationalist
Marxism No Capitalist Secular Oppressed Revolutionary
hypocrisy and rationalist classes
means of exploited within
intimidation the structure of

Death Penalty
economy
Kieslowski Mostly no Thou shall not Artistic Mostly destiny (A)political
kill; pain
Kafka Yes Broken machine Masochistic Psychoanalysis Apolitical
Biopolitics of No; (Self)governing Liberal human Technology of Cynical
the Day substituted of the population rights the self
by of living beings
euthanasia

107
108 Chapter 1

violence, which is not a big compliment since, in Habermas’s account,

Bataille is the one escaping from philosophy to lousy metaphysics and
literature, using his dual identity as a refuge when he comes to a rational
dead end. Habermas classifies Benjamin’s text as “an early essay” (Ha-
bermas 1990, 220). He finds its sacralizations of pure means as nearly
missing the endorsement of the fascist violence. Judging by his sarcastic
language, Habermas found short of ludicrous the idea that a manifesta-
tion of justice that is purely expressive—that is, not conveyed instrumen-
tally by a political order—could be found in a general proletarian strike.
Whether Gewalt can be pure, and how to precisely translate it with a
word, I won’t dare answer here beyond some calembours in passing to the
point. Instances and examples suggested by the previous paragraph, be it
a proletarian upsurge or a fascist orgy à la Pasolini’s Salò, have richer
connotations than the drawers labeled “force,” “violence,” or “power.”
This hair’s breadth difference from fascism, as in the Hasidic story where
the perfect world is very similar to this one (see Rokem 2012, 343), is not
only a story of power or force or violence, but of powerful violent force,
or forceful powerful violence, of a sovereign violence coming from pow-
er, against conceptions forwarded by Hannah Arendt. Although some of
these linguistic and theoretical puzzles cannot be resolved in this chapter
and treatise (or at all, since languages and traditions are sometimes stub-
bornly incommensurable in their idiomatic nuances), even if some of it is
further discussed in the chapter on punishment and power, Habermas’s
thematization of Bataille’s ideas between eroticism and economics is sig-
nificant for the discussion offered in this chapter: it is, in fact, the discus-
sion of sovereign power and the theoretical justification of its taking of
the life of the individual in certain circumstances. The line of reasoning
analyzed by Habermas follows this chain: the layers of rationality and
work obscure the primordial being in the world, perhaps making it at-
tractive by making it distant. Sovereignty is a surrogate for this, an excess
of power, a political orgy of nature. For Bataille, sacrifice is its purest
form, against the iron cage of work, rationality, and civilization. Conse-
quently, taking its purest form from it—the death penalty—implies a
certain sacrilege. It is an emasculation of sovereignty. Without it, sove-
reign power becomes a surrogate, an empty shell. If we agree with La-
penna that this sacral character of the order is implicitly accepted by the
authors of political theory—whether they are decisionists, contractarians,
or utilitarianists is of lesser importance—giving precedence to the com-
munity against the individual who transgresses, then the abolition of the
death penalty means desacralization of sovereignty.
For a common man, a figure who likes to shout “The king is naked!”
no matter how the strange charlatan tailors laud the sovereign’s sophisti-
cated clothes, this perhaps still means that the killers will escape the
rightful retribution. For Derrida and Lapenna, this is good since no pun-
ishment may go against the quasi-sacred right to life. (More pragmatical-
 Death Penalty 109

ly, there is such thing as life in prison at least, substituting the penal
matter of this chapter with the prolonged torture of the loss of freedom.)
For Bataille, it isn’t good or, more precisely, something is lost or hidden
by it. It is the elusive terrain of sexuality and death of Bataille’s anthro-
pology, a piece of bad metaphysics from the perspective of Habermas’s
iron cage of philosophical rationality. If He were alive at all, we have
killed God and replaced Him with a secular god. Then we have killed the
secular god by killing its right to kill. If death is abolished, prison will be
abolished, or so would run the argument in the less subtle style of the
decisionist camp. There is no punishment, there is no order; everything is
allowed, and everything crumbles. The horror, the horror. Or simply the
civilizing process? Following the unsympathetic characters from the ear-
ly 1990s NOFX song “The Moron Brothers,” we “may not go down in
history” but we should at least go down to it, in order to look at these
issues from another perspective.

NOTES

1. Divine violence is literally defined as “pure means devoid of force” (reines Mittel
gewaltlos).
2. The original speaks of etwas Morsches similarly to the famous constative line
from Hamlet, about something rotten in the state of Denmark (in German translation:
etwas ist faul im Staate Dänemark). For Benjamin, law cannot eschew violence, it only
bastardizes the original mythical violence, whether establishing it or preserving it:
“Violence is latent to all forms of law, however remote it may seem” (Kellog 2011, 76).
3. Ehrlich was careful in phrasing when he discussed the normative implications
of his analysis (see Ehrlich 1975, 416).
4. Or with biology: I also leave out the discourse of sociobiology, that might speak
of punishment, including the death penalty, as an evolutionary strategy enabling prof-
it in terms of survival and reproduction to the collective of gene carriers.
5. Butler pinpoints Derrida’s deconstructionist concerns about the death penalty
with a vivid analogy, for the good or the bad of it: “Are abolitionists like anti-pornog-
raphy campaigners who end up exciting their supporters with their graphic descrip-
tions of the porn they would get rid of?” (Butler 2014). But then, is Derrida or Butler
(or the author of this book dealing with the lurid matter) exempt from such an accusa-
tion?
6. In the original 1651 version; in the version quoted in this book, “[p]repared for
the McMaster University Archive of the History of Economic Thought, by Rod Hay,”
that is, the same 1651 version slightly linguistically refreshed (“the sovereign” instead
of “Soveraign,” etc.); the bit is not in brackets but the meaning is the same.
7. Locke’s ontology is one of potentially reasonable beings: “The state of nature
has a law of nature to govern it, which obliges every one, and reason, which is that
law, teaches all mankind who will but consult it” (Locke 1823, 341/§6).
8. For an interpretation that emphasizes Beccaria’s abolitionism, see Harcourt
(2013, 11–12).
9. Vernunft can be translated as reason, for lack of a better word.
10. Artur Barciś, sitting by the lake, appears warmly wrapped in a sheepskin, per-
haps a pastoral symbol.
11. The year when Kafka read the story in public, he was less mechanical in his
other imaginative moments involving punishment. He was a member of a group that
caught the enemy. They did not have a knife to cut their adversary so they burnt him
110 Chapter 1

instead, placing his leg into an oven. From that dream, merging anthropology and
psychoanalysis, if we should believe his dairy, Kafka woke in horror on 20 April 1916
(Kafka 1954, 493).
12. The change of vocabulary in the story between apparatus (der Apparat) and
machine (die Maschine) could perhaps be associated with the reading offered here, of
the story dealing with the penal means that lose their projected purpose and rational-
ity. However, it works with the other readings as well, for example, with Agamben’s,
which sees language itself as a penal machine (Whyte 2008, 66–67).
 TWO
A History of Violence
Changing Conceptions of Punishment in Time and Some
Attempts to Explain Them

There is a Whig history of everything, including punishment. 1 It goes

something like this: first there was revenge, a spontaneous act of diffuse-
ly authorized punishment, sometimes codified as custom, a more of
primitive social formations. Everyone is an author of punishment. Per-
haps it can be accounted for by the evolutionary theory and the metaphor
of a selfish gene associated with Richard Dawkins: in performing revenge
as punishment, families and clans are satisfied with the substitute that,
vulgarly speaking, sends the message “these genes are not to be messed
with.” In other words, it does not have to be the exact culprit, since the
species or its clusters of competing genetic variations are the basis of
ethics, as for the utilitarian policy-makers in the dystopian setting of
Christopher Nolan’s Interstellar, sacrificing individual histories, emo-
tions, and memories for the survival of humankind. For the individual
ontology of liberalism and human rights, it is a gross misplacement. It is a
punishment hitting the mark only for the collectives of the carriers of
blood and names, similar vessels with scattered essence across multiple
manifestations. Then, at the shaky beginnings of civilization, when estab-
lishment of a permanent sedentary authority displaces the unclear pic-
ture of primordial hordes, ur-fathers and sons invoked by psychoanalysis
or the Greek myths and tragedies of revenge and rebellion, punishment
of death was installed, or banishment, a harsh excommunication, some-
times equal in effect. The punishment was retributive: a revenge, but
controlled, centralized, and institutionalized, performed under auspices
of the political order imposing legitimacy. Lex talionis, the law of retribu-

111
112 Chapter 2

tion, replaced the more primitive lex sanguinis, the law of blood guiding
revenge. And it often became more brutal, “draconic,” if the circum-
stances called for it, especially since death, paired with torture or mutila-
tion glorified authority by instilling fear. When life is cheap, property
scarce, and power simple and brutal, death can be inflicted for lesser
crimes.
The beginnings of history, antiquity, and medieval times bring
changes, but the essential understanding and practice of punishment on
the body or on the purse in the form of fines follows the retributive
philosophy of punishment. Prison is there but as a primitive technology,
a dungeon to rot in, mostly understood as a an institute of the criminal
justice procedure, keeping the accused and condemned “at the hand of
justice” before they pay their debts or are tortured and killed in a public
space, already evoked place publique of Camus’s Stranger, where heads are
chopped in front of an agitated crowd. Carcer enim ad continendos homines,
non ad puniendos haberi debet, as Ulpianus, a great Roman jurist, formulat-
ed it long ago: the prison is here not to punish but to “contain” people
(until punishment or debt payment). Developments in the modern age
have brought some changes. Together with retribution, prevention
emerged more explicitly as a rationale of punishment and goal of govern-
ance. Prison emerged as the main vessel of punishment, a place for instill-
ing discipline and administering corrections. The same cure for different
diseases: the penological voices in the times of the French Revolution
marveled upon its sudden omnipresence, not understanding how any
misdeed is punished by the same penalty.
To add another Foucauldian notice: not only should the criminal be
punished justly, but society should be defended by the active imposition
of discipline and the interventions of public policies into the social envi-
ronment that is breeding crime and compromising security—intelligent
prevention instead of a cumbersome sanction that produces societal dam-
age. And in our own time, as the story goes, since something passes
through the net of prevention, prison was supplemented with alternative
sanctions: probationary regimes and punishments in the community. At
the level of goals of punishment, prevention was paired with rehabilita-
tion and resocialization. Penology became a science and, perhaps one
day, prisons will be no more. It was a reduction of brutality, a more
humanitarian approach in which some saw the proliferation of control
and more cunning and economical disciplinary techniques beyond pris-
on, involving an interdisciplinary net of psychiatry, psychology, pedago-
gy, social work, and other disciplines useful for criminal justice and social
policies.
We may suspend the contingencies and the need for chronological
accuracies; we may turn a blind eye to the various tracks and disparities
in the penal present. We then see a story of progress, almost a Hegelian
development of the idea toward more humane and rational punishment
 A History of Violence 113

until, perhaps, it is extinguished or radically transformed in the process

of governing our societies with less and less cruelty and unnecessary
pain. Punishment will one day become obsolete, a long-forgotten primi-
tive practice of power; a sadistic ritual in the long history of violence
before the dawn of the new nonpenal humanity. The history of punish-
ment, then, becomes a secular philosophy or even a prophecy, an act of
faith in a better tomorrow.
The story, as I have told it, could be garnished with nuances, caveats,
and references, but there is no need to do so because it is a blatant carica-
ture told for the purposes of a brief illustration. For example, it complete-
ly ignores different paradigms of justice where adjudication and punish-
ment are not understood as an imposition of a sanction but as a trial,
often bizarre and unjust to our eyes, but nevertheless instituted as a judi-
cial ritualization of conflict from the beginnings of mostly warlike civil-
ization: ordeals and trials that test one’s strength or (divine) grace in a
particular case, instead of researching the facts and applying the tailored
sanction to a case buried in the past (Foucault 2000a; 2011). The worlds of
justice have changed many times and only the respect for this basic fact
demands more than the simple glossing over its importance and the
myopic infusions of the present into the past, in a facile story of linear
progress. Furthermore, paradoxically, as discontinuities are ignored, as
well as small intricacies, differences in class and in power, so are the
continuities, beneath the usual distribution of roles between heroes and
villains. A more accurate look, for example, would show that even the
notorious Inquisition was not that bad, offering some guarantees for the
defendant, that do not look so vile especially compared to the then prac-
tice of accusatorial procedure (Damaška 2012), exemplifying, however,
that even a detailed genealogy, finding a continuity where many thought
there was none, may be paired with lip service to the discourse of tran-
sepochal moral standards. Finally, punishment wasn’t solely retributive
in any communicative setting that encompassed both nature and culture:
its intended or spontaneous function was aiming at the future, to scare or
to prevent, to pretend justice, or in other ways to communicate to others.
If this is too abstract, too sweeping, or sounds metaphysical, the ideas
of Rusche and Kirchheimer thematized in this chapter, on how there is
only practical punishment, not punishment in general, offer a good point.
The nominalism of the position rightly points to the vast differences in
punishment across time and space, which are only appreciated through
precise historical research. Punishment is a unifying idea, but a pretty
empty one outside of concrete society. There are punishments, not punish-
ment in singular, one might say with a bit of exaggeration that sets aside
the unifying labors of the introduction (too radical a nominalism, serious-
ly meant, after all, stops any rational scholarly discussion, as the world
disperses into disparate particulars). Various practices in various settings
of discourse, economy, and power—the things absent from the story
114 Chapter 2

above—can explain longevity of a punitive practice or its short life. No-

body today transports convicts to the colonies since there are no more
colonies, at least on the literal level, but it was perfectly logical for the
entrepreneurs of punishment in the world of flourishing colonialism be-
fore the politics of the human rights (see Feeley 2002). And revenge, “a
kind of a wild justice,” exists and probably will exist on the level of
various personal feuds, vendettas of organized crime, or even as a wide-
spread custom in conflict with a state’s procedures and policies for deal-
ing with violence. For example, blood revenge is still existent in northern
Albania, as depicted in the film The Forgiveness of Blood, which does not
lack sociological accuracy: A fatal dispute puts family members into per-
manent expectation of punishment, turning the house into a bunker. And
it is not quite wild. It is regulated by the Kanun, the codified custom of
ethnic Albanians in these matters that prescribes which lives can and
which cannot be taken, and employs experts whose reasoning and solu-
tions are offered to the parties, and who have to be paid, as state judges
receive salary, since they provide an arbitration service concerning in-
demnities, justice, and punishment. Changing philosophies, changing
practices, persistent practices in parallel histories. These are facts of the
history of punishment. If it does not trick us by making a complete
change that nobody has foreseen, history may easily be revised or it can
wake up—if it already does not live in the present.
Instead of grand movements of history, achieved at the price of high
abstraction, or even falsification, the ambition of this chapter is a modest
one but nothing less extreme for that. It offers stories about punishment
that appear unusual today, on the levels of different practices and on the
level of discourses purporting to explain them. The history of violence is
a history of various historical settings and discourses. It is, especially
since the discursive activities of social science proliferated, a history of
discourses on discursive practices, providing not only specific historical
accounts, or first-order justifications pertaining to values, but also sec-
ond-order explanations that, after establishing facts, seek to unravel
working causes behind offered reasons. Following this scheme, to set the
mood, I first elaborate on some facts and perspectives on cruel and un-
usual punishments of the past and on some more or less bizarre episodes
from the history of punishment that correct the introductory caricature
and give a clearer general meaning of what the history of violence is.
Various technologies and stories, both fragile and persistent, show how
the history of punishment is a history of change and some stubbornness
at the same time. Second, I recount some interesting discourses that offer
explanations of these changes: Durkheim’s classical account, a Marxist
history of punishment, Elias’s approach, Pinker’s influential narrative
that discusses the history of violence—a film starring Viggo Mortensen
on violent histories haunting the present, but also an essay by Pinker,
dealing with the same matters more thoroughly covered in his books—
 A History of Violence 115

together with several reflections on history and the role of punishment.

Although I bombard the reader with conspicuous Foucauldian motives
throughout the book, I leave a more focused discussion of Foucault for
the next chapter, since for the purposes of this book I approach him, even
if it is a worn-out phrase, as a thinker of the present, since to think about
changes of punishment from the perspective of political power still seems
to me as a very actual thing to do. Finally, I offer a vignette on the
practice of punishment in the concentration camps of the Holocaust, set-
ting the terrain for the chapter on punishment and power. If after the
Shoah poetry is impossible or forbidden, as a meek metaphysical insult
or a prudent social taboo, social sciences can still try to reduce the feeling
of horror to a conventional Weberian historical explanation beyond mys-
ticism and political myth. Insofar as they fail in that attempt, the last
chapter of this book finds its legitimacy.

CURIOUS AND CRUEL: AN UP-TO-DATE HISTORY OF SOME PENAL

MACHINES AND PRACTICES

“The sights, sounds, and smells of the body in pain ceased to be an

essential part of the institution and became a problem to be minimized
out of concern for the offender and for witnesses. Death, and death alone,
became the punishment” (Garland 2010, 92). This discursive segment de-
scribing policy change concerning one specific punishment in a political-
ly tight but penally heterogeneous federation of states has wider theoreti-
cal and empirical import. Death, with which we have dealt in the previ-
ous chapter from the perspective of political theory, is perhaps only a
part, but arguably most important part, of penal policy, a part in which
the general historical change of punishment is distilled, the change that is
on various levels professing its revulsion toward the body in pain.
There is much to say about these changes beyond the history of ab-
stract legitimizations of the political right to punish, up to taking life. It is
a history of technologies, procedures, symbols, and discourses that have
varied in times and places. Perhaps the gist has not changed—the con-
cept of punishment still works as such and is demanded as a political
prerogative, but it is certain that the grandeur of political power was once
shown more pompously through punishment, often sadistically, if
retrospective usage of the modern concept is allowed, and certainly with
considerable theatrical imagination that is today mostly lost. We deal
with political power after we exhaust historical and comparative ex-
tremes, while this chapter, before introducing theoretical discourses that
explain changes from the relative distance of a bird’s-eye view of a theo-
retician, provide some context for them in this section. It is perhaps not
much more than the game of associations and a patchwork of cherry-
picked examples across space and time. But this short diorama, jumping
116 Chapter 2

from one extreme to another, goes beyond providing some close-ups and,
generally, juice for the analysis of the famous attempts at explanation. It
places the varied baroque of torture in multiple cultural forms within
some proto-explanatory social and political contexts, and it questions the
validity of some normative concepts we use today to think about punish-
ment in the past; it also deals with the persistence of torture and capital
punishment, at the same time offering a sketch of the historical transfor-
mation Garland intimates. It is a story of change but also of persistence of
some old content in new forms.
If we would accept a quasi-Hegelian narrative of unfolding history of
punishment dissolving into more advanced and less brutal forms until
the one last dialectical twist makes punishment no more, then the follow-
ing statement, from the foreword of a charming display of the “curious
punishments of the bygone days” issued about a century ago, would
apply: “a punishment that is obsolete gains an interest and dignity from antiq-
uity and its history becomes endurable because it has a past only and no future”
(Earle 1896/2010, vii; italics in the original). This, alas, does not hold, since
punishments are hardly a thing of the past. Specific forms may be anti-
quated and belong mostly to mobile museums of medieval torture—there
was one open in Šibenik, on the Adriatic coast in the summer of 2015, that
I revisit at the end of this chapter. However, publicly visible punishment
paired with public morality or politics of friend and enemy, and action on
the body, not necessarily by a central formalized sovereign authorized
through a constitutional order, still stubbornly persists. Its gist, its func-
tion, and even the historically typical differences in severity for different
classes of offenders, persist. Even if usually not formalized in an age that
vociferously professes its belief in democracy more than anything else,
such punishments are present and probably will be in various attires, be
it “Texas tough” (Perkinson 2010), with harsh prison and a death penalty
machine historically compensating for the declines in lynching (Mar-
quart, Ekland-Olson, and Sorenson 1993) and executing more than half a
thousand people from the 1980s to the present day; or impressively abun-
dant informal executions, for long counted in the tens of thousands
killed, a bit more to the south, in Mexico still much under the sway of
drug lords and cartels; or, a bit more to the east, the still not dismantled
polycentric caliphate from the introductory croquis where once again the
official policy corresponds to a harsh penal practice.
Against the Enlightenment—or at least its later variations that did not
see in punishment a possibility for the citizenship lectures in the punish-
ing city, and that opposed cruelty as grotesque practice of decadent feu-
dalism that evolved into more or less absolute monarchies with similar
punishments—a nonstory on politics and cruel punishment is simple and
stubborn. Torture, often up to death, was the political ritual of punish-
ment that continues to be—in police, prisons, army and paramilitary op-
erations, in the work of the “secret” services, in the organized crime
 A History of Violence 117

milieu, or in a simple lynching outburst of mob, beyond any conspiracy

theory. It may be used in a directed, top-down way, with ostensible polit-
ical intent, or as a symptom of politics no one really controls or wants to
control, in various dystopias such as historical concentration camps,
sometimes reminiscent of de Sade’s horror closures, which I use at the
end of the chapter to make a point about extreme venues of history that
challenge the narrative of development, or at least drill some serious
holes in it. In other words, this type of punishment—the death penalty,
simple or afflictive—is still relevant and lives in the present. Its investiga-
tion in the past thus goes beyond digging up mere historical curiosities.
To probe it in history, I have chosen several extreme forms that demon-
strate its phenomenology before discussing its causes and functions.
These are strange juxtapositions of organic and mechanical, rotating and
cutting, chairs and crosses, frying and paring. To the reader, I thus first
present elephants and cannons, the wheel and the guillotine, and finally
some familiar symbolics of the penal cross, electric torture, and a slow
slicing.
Instead of Orwellian boot stamping of the human face forever, it was
the leg of the elephant stamping on the human face during the ritual of
the death penalty. Forgive my Huxleyan vocabulary (à la Dr. Robert
explaining Pala to the inquisitive visitors), but these “natural giants” are
not a myth and were even less a simple means of killing. They were
trained agents of a real execution method, a sophisticated one, mostly in
India, since, unlike African elephants that are larger, more “savage,” and
harder to train, the Indian ones could be trained both to use tusks and
crush limbs, before they would add the coup de grâce by pressing the
torso or crushing the head with an elephant step, that is, a stamp on the
human body. To paraphrase, it was a small step for an elephant but a big
one for punishment. The key is in the symbol of the grandeur of sove-
reign power, because execution stripped of symbolics may be performed
by a simple human stab. The big wild animal, domesticated to use force
at command, means power over nature and also an association with na-
ture (that, according to Darwin “selects only for the good of the being
which she tends”), demonstrating sovereign power over nature used to
curb any disobedience in society (to paraphrase the other part of Darwin:
“sovereign selects only for his own good”). 2
The advance of technology changed the means of execution not only
because of its effectiveness, efficiency, and economy but also because of
its political symbolism. Elephants were exchanged for guns, a symbol of
an old native power with a colonial import of technology. Together with
beheadings and hangings, blowing away by cannons that pulverized the
offender’s entrails now symbolized the technological superiority of West-
ern engineering and mechanization. The following episode of punish-
ment is a bit typical for nineteenth-century Europe’s sway over the
world. Instead of trainable beasts, which were expensive, demanding,
118 Chapter 2

and sort of primordial, cannons—bringing together technology and the

bombastic production of death in warfare—were also easier to operate
and generally more predictable, as was already known to Toussaint Lou-
verture, who punished his rebellious nephew, General Hyacinthe Moïse,
by attaching him to a cannon’s mouth and blowing him to pieces in 1801,
more than half a century before the British crushed the 1857 rebellion in
India, which in its punishing aftermath overused cannons as the execu-
tion method that should have scared the natives straight out of any
thought of future uprising.
In place of Samuelson’s exchange of guns for butter illustrating the
production possibility frontier, the exchange of guns for elephants prob-
ably did not bring substantial change for the executed. Anyway, it seems
grandiose and symbolically saturated in a simpler way than the varia-
tions in the use of the wheel in execution. However, the method had its
technological and semantic intricacies, entering culture and symbolical
space. La roue was described by the author of Les Soirées de Saint-Péters-
bourg, Savoyard philosopher de Maistre, one of the historical champions
of conservative political thought, who was deeply violent and admired
the brutal power of nature when, according to Isaiah Berlin, his Catholi-
cism is stripped naked, revealing nature as a chaotic force, as under Bul-
gakov’s red ray or in Tennessee Williams’s prose, a “horrifying picture of
life as a perpetual struggle” (Berlin 2003, 2). According to de Maistre’s
description of the procedure—that is, one of the possible variants since
the usage of the wheel(s) for torture is pretty ancient and relatively di-
verse—it involves prior stretching, tying, breaking of bones, and then
entangling the shattered limbs. The rightfully narcissistic executioner,
God’s agent on Earth in de Maistre’s world of vitality of blood, war, and
human sacrifice, can exclaim with pride after his victim has expired, con-
gratulating to himself “in his heart: ‘Nobody quarters as well as I’” (see
Goldhammer 2005, 99–101). More prosaic was perhaps the execution on
the wheel of Franz Seuboldt for the crime of parricide, which traditional-
ly had a special place in catalogues of misdeeds, since killing a near
figure of authority in family, a small sovereign, was paired with almost
mythological prescriptions in Ancient Rome (we attend to that in a mo-
ment): in Nuremberg, 1589, breaking his limbs at the execution place (the
Rabenstein) illustrates the differences in the procédé of the execution on the
wheel—or by the wheel, to be exact, as the comic-book-like woodcuts,
progressing from the shooting to the execution, show the executioner
holding the wheel in his hands above his head to use it as a means to
break the limbs of the condemned (Fagan 2011, 54). According to that
version, Pope who in the Epistle to Dr. Arbuthnot with a significant cultu-
ral echo posed a rhetorical question of the sense of breaking of a butterfly
upon a wheel, would have to change the preposition in the memorable
literary figure of his heroic couplets.
 A History of Violence 119

However, the techniques of public execution can arrive at different

symbolic effects than those intended, since the application of them is
often a trial of a potential martyr exemplifying the weakness of tyrant
instead the might of sovereign. Symbols of sovereignty can backfire into
mutiny. Executions as demonstrations of a sovereign’s majesty that can
and have gone awry, as documented in Foucault’s Discipline and Punish,
exemplify this possibility of public rituals of punishment to politically
backfire (anecdotal is at least here firm enough since I am not interested
in discussing the frequency and general impact of such botched rituals of
sovereignty on historical changes in power and punishment). A bit short
of two full eons after the crucifixion of romanticized renegade gladiator
Spartacus’s accomplices, or about half an eon and half a century after
Guillaume Cale, the leader of the peasant uprising, was executed, John
Brown, the leader of the League of Gileadites, was hanged by the
American authorities. He was hailed by Emerson and by Victor Hugo,
who wrote from Guersney in the late 1859 about political and moral
hazards of such an execution: “You save your shame, but you kill your
glory. Morally speaking . . . the very notion of justice and injustice would
hide itself in darkness. . . . there is something more frightening than Cain
killing Abel, and that is Washington killing Spartacus” (Hugo, quoted in
Himes 2011, 153). Political metonymies and metaphors are not lacking,
while, discussing the ambivalent symbolic of executions, we should not
forget that Rome did not use the language of terrorism but simple cruci-
fixes, convenient for torture following the evolutionary architecture of
the human body. Emerson could thus call these “gallows glorious like the
cross” (see McCall 1999, 72), while the Night Train to Lisbon, operating
against clerical fascism prone to torture, could question the contingencies
of this symbolism, ironically expressing the familiar Nietzschean senti-
ment: “A religion whose center is a scene of execution, I find disgusting, he
once said. Just imagine if there have been a gallows, or a guillotine, or a garrote.
Just imagine how our religious symbolism would look then” (Mercier 2008,
121). In the adaptation of Mercier’s fictional–philosophical bestseller to
film, the variation is uttered in a romantic conversation between a Portu-
guese ophthalmologist and a Swiss professor obsessed with its author,
Amadeu de Prado, a Portuguese physician and a philosopher who defied
Salazar’s dictatorship. A more obscure and now historical Iberian garrote
is replaced with better known Edisonian technology. If God was by
chance beheaded or fried by electric current, ironically claims the profes-
sor, played by Jeremy Irons, we would pray in front of the guillotine or
the electric chair.
This brings up at least two mostly French references that showcase the
persistence of political torture and further illustrate the intricacies of dis-
cursive space around execution. As Hawthorne’s Scarlet Letter observed,
discursively catching a glimpse of the initial historical meaning of terror-
ism as political intimidation by the state: “The scaffold constituted a por-
120 Chapter 2

tion of a penal machine which now, for two or three generations past, has
been merely historical or traditionary among us, but was held in the old
time to be as effectual in the promotion of good citizenship as ever was
the guillotine among the terrorists of France” (quoted in Earle 1896/2010,
44). The guillotine was also ironized by Heine in his famous satire, a
classic of German literature. The caput VII of Germany: A Winter’s Tale
sees the equalizing potential of the machine: if you don’t like the guillo-
tine, writes Heine, you can stand by the old means, that is, the sword for
aristocracy, which evokes their historical fighting role, and the gallows
for the bourgeois and peasants in their rags. Either choose equalizing
punishment employed by the state or by its challengers—salus revolutiae
suprema lex or intimidation of all by a ticking bomb that can hit a random
target of punishment—both methods seem egalitarian. Anyone and all
can die in the same manner. However, the precise targets of new punish-
ments that, as in Bauman’s analysis of the Charlie Hebdo attack, on the
other hand, suggest refeudalization of punishment, thus making this re-
publican egalitarianism of punishment obsolete as the standing con-
scripted armies are replaced by paid professionals and mercenaries.
In expanding and bringing together the motifs associated with the
punitive cross and the export of punishment by the French Republic, we
should note that, while the Christian West was not praying to the electric
chair, the history of exported Western punishment involved some pray-
ing to the electric Koran, which is mentioned mockingly in the second
reference coming from the discourse of the informally authorized tortur-
ers during the Algerian war for independence. In the anecdote, the officier
français speaks to the parliamentary investigation committee on torture.
He reveals how he obtains the truth from the interrogated Muslims by
making them swear not on the traditional Koran but on the electric Koran
(a pun on courant éléctrique; see Vinen 2001), that is, he uses electroshocks
to extract information or simply torture the enemy according to the prev-
alent practice. 3 In fact, it is the captive “fellagha” who exclaims that Ko-
ran/current is electric, referring to the technologies of torture, meticulous-
ly documented by Rejali (2009), whose book is discussed in the chapter
on punishment and power. The whole story doesn’t sound pretty ex-
treme after the war on terror, but it is paradigmatic and shows how
power still works with torture and death when necessary, cynically evok-
ing Cicero’s saying that pressing concerns of the extreme situations do
not know the regularity of law (necessitas lex non habet). The whole story
was recapitulated a few years ago when General Paul Aussaresses, a one-
eyed, hardened soldier (the eye was not lost in battle, however, but in une
opération de la cataracte mal tourné), died at age ninety-five; his controver-
sial interview for Le Monde from November 22, 2000, was reproduced for
that obituary occasion (Beaugé 2013). Although he stated that he did not
like torture and summary executions, he also explained that is how
things worked and that it was not a thing one can regret or feel sorry
 A History of Violence 121

about (sans remords ni regrets), which was a shocking revelation, at least

for the petty bourgeois public. Although he claimed he did not torture
others himself, he was involved in summary executions: Aussaresses
would kill the FLN militants dangereux pour nous, or authorize the killing,
which comes down to the same thing. His daughter renounced him and,
on the question about how many he had killed, Aussaresses first said
between ten and thirty, and then, on repeated questions from the journal-
ist, he finally specified that the exact number was twenty-four. In other
words, the responsibility of political power of the times for the practices
of torture is not in question.
To return to more distant history, the simple slicing of the guillotine
had its historical counterpoint that also provoked French interpretations.
The mechanics of the revolution can be opposed to an oriental technique,
a scientia executionis to an ars torturae, but also erotica for some aficiona-
dos, to paraphrase Foucault on a literal level. It was indeed one of his
intellectual influences that marveled before the slow slicing, perhaps the
most painful of the historical torture/execution methods, or at least the
most horrifying method of executing a death penalty. The point of the
ling chi or slow slicing, which was introduced during the Chinese empires
by the Mongolian Yuan dynasty in the thirteenth century, was to not to
stab vertically but to cut pieces of flesh from human beings horizontally,
similarly to the filleting of fish or the cutting of pieces from the rotating
kebab, which theoretically and somewhat practically enabled prolonged,
extremely painful, and horrifying torture sessions, probably worse than
the old Ottoman impaling through the entrails, with the stick entering in
the body through the rectum and out through the clavicle. The latter, if
done professionally by the technicians of punishment, enabled a much
slower public dying: its sounds, feelings, smells, and pains were vividly
described by the Nobel Laureate Ivo Andrić in one of his narratives from
Turkish Bosnia, in the novel A Bridge on the Drina (Na Drini ćuprija). As
for the ling chi, the horizontal slicing was finalized by the symbolically
important beheading and practiced for about a thousand years. It was
applied in the cases of the worst crimes such as treason and parricide,
that is, mutiny against the heavenly father and the earthly one, two patri-
archal sovereigns and pillars of the order of Confucian filial and political
piety, until the demise of the Chinese empires and Pu Yi’s exit in Antoni-
oni style. Like the bastinado, the practice survived long enough to be
witnessed and photographed by Westerners visiting the Celestial Empire
and thus caught the imagination of Georges Bataille, the mystical pornog-
rapher.
Bataille’s thoughts from his Summa Atheologica are perhaps hard to
associate with historical accuracy or general psychological validity—this
is not the genre, anyway 4—but are worth mentioning not only because of
the arguable poetic inspiration associated with death, sexuality, violence,
and human sacrifice. Bataille’s ideas are provocative since they introduce
122 Chapter 2

a sort of an existentialist affirmation of the extreme torture and pain

associated with punishment as sacrificial violent demise. It is a mystical
experience, opening the bliss of being to an individual tortured to death,
extinguishing his painful singularity, and to spectators sharing some of
this sacrament: “The victim dies and the spectators share in what his
death reveals. . . . A violent death disrupts the creature’s discontinuity:
what remains, what the tense onlookers experience in the succeeding
silence, is the continuity of all existence with which the victim is now
one” (Bataille 1962, 82). What did Bataille, in fact, do? He picked some
horrendous photos of exotic supplice Chinois (see Jorgensen 2008) that
haunted him after he stumbled upon them in his life, in a serendipity
supposedly involving his psychoanalyst (Miller 2005, 218–19). The pic-
tures show the tortured subject who is about to die having an expression
on the face that looks ecstatic, although one is not finally sure if it is a
manipulation similar to the one ascribed to Goddard in the case of Kalli-
kak family pictures posing on an unspecified Southern porch. 5 Bataille
admitted how he “never stopped being obsessed by this image of pain, at
once ecstatic and intolerable,” wondering “what the Marquis de Sade
would have thought of this image, Sade who dreamed of torture, which
was inaccessible to him, but who never witnessed an actual torture ses-
sion” (Bataille 1989, 206). 6 It is certainly an extreme worth meditating
upon in the history of punishment, at least for the admirers of negative
theology, since in Bataille’s discourse mythological-historical sadists such
as Gilles de Rais or Countess Erzsébet Báthory in search of love lost
become God’s agents.
But I should stop here. This short, inconclusive, and mostly Eurocen-
tric lineup of various gruesome punishments—worthy of Dante’s Inferno,
not only a grandiose allegory but also a reflection of penal practices of the
times—giving extreme phenomenological content to the dryer theoretical
passages of the former chapter, opens up some questions. 7 Why were
these extreme punishments instituted, what sustained them, and why do
they seem not to be publicly possible today as they were practiced in
history? For starters, we can probably agree with Collins who put the
extremely violent punishment within the context of societal change and
group stratification, following Durkheim to a point:
Hunting-and-gathering societies (as far as we can tell) and simple hor-
ticultural societies often are relatively peaceful … and their violence is
very sporadic, external, and unrefined with respect to deliberate cruel-
ty … the height of ferociousness in world history is found among iron-
age, agrarian societies, and indeed, among the highly advanced civil-
izations of this type: ancient Rome, European Christianity, Islam. (Col-
lins 1974, 423)
As the title of this treatise suggests, punishment is a part of wider
societal performance of violence and it is easy to show that gruesomeness
 A History of Violence 123

of punishment correlates with overall levels of violence, even if in some

conditions draconic punishment functions as its supporters insist—as a
means of general prevention, keeping violence in check by stern penal-
ties. Pinker disagrees with Collins, seeing even the ostensibly brutal pun-
ishing state as the factor of order. He points to the savagery of hunting
tribes and searches for the ruptures in the prehistoric skulls: hunter-gath-
erers and hunter-horticulturalists are lumped together and further paired
with forensic archeology in a “Paleolithic CSI,” showing that prehistoric
cultures and “ethnographic vital statistics” of more recent tribes living in
nonstate settings exhibit higher rates of violent death compared to state-
governed societies (Pinker 2011a). Whether forensic arguments about
prehistory and tribal warfare statistics confirm Hobbesian intuition about
the nonstate state of nature, however, is not so important here since Col-
lins’s argument works when constrained to the state-organized violence
framed as punishment, leaving aside the question of violent semistruc-
tured anarchy of all versus all, or group versus group. Indeed, in the
latter cases, “stratification is nevertheless very local in scope; the ruler’s
power is still very circumscribed by surrounding councils and by the
weakness of military technology and administrative organization” (Col-
lins 1974, 423).
For example, what we know of the Native American culture—I am
grossly generalizing against the fact of differences—confirms Collins’s
view. In a resolute account of classical sociology (MacLeod 1937), govern-
ing structure together with function of punishment in “Indian” tribal life
appears in a mostly egalitarian society or, more accurately, society that
has no large mutually opposed strata concerning economical basis; that
is, it has no firm class structure and accompanying cultural differences.
Examples are taken across the tribes according to the data that are prob-
ably no good for a filigree of cultural variations of, to use the umbrella,
Native American societal forms, but for our illustrative purposes they
serve us just fine. Oligarchic tendencies appear, almost according to
Michels’s “law,” but organization is not especially structured so that pun-
ishment seems to appear in its pristine form of preventive societal func-
tion that utilitarian discourse attempted to perfect and rationalize.
Alongside the duties of coordination in the great bison hunt or proto-
public works, the armed and coordinated unit, police or the “dog-sol-
diers” also policed quarrels, and served in “administering” the murder
cases and performing punishment. Flogging and destruction of livestock
such as dogs and horses, and inanimate property such as tents and
clothes up to destitution, are, for example, enumerated as punishments
among the Cheyenne, the Crow, and the Omaha, as well as the most
severe punishment of ostracism for inflicting death upon the victim,
which may equal the death of the perpetrator in harsh conditions where
the environment is not mastered. It serves to replace possible harm to the
whole community done by the quarrels that, although there was no Ba-
124 Chapter 2

con to quip on it, were to be “rooted out” since vendettas by the relatives
were prone to produce a spiral of violence. Together with fact finding
and administration of retroactive punishment, the Native American po-
lice were also to supervise instances of ordeal in special cases where the
killer, a policeman in the line of duty or a killer of a partner’s lover,
would be set on a horse for a party of bareback riding—to be spared if he
stays mounted or to be killed by the relatives if he falls (MacLeod 1937,
198).
However, in contrast to this relative simplicity of punishment, big
historical empires, as we have seen, offer harsh, almost mythical penal-
ties following the elephant’s foot. Why this cruelty? This begs the prior
question: does the concept of cruelty function at all in these settings?
Although the history of literature, political thought, and reflection is also
a history of sensitive souls, and many things against cruelty were uttered
long ago in various cultural contexts, we cannot be sure for the majority
of the population subjected to punishment we today see as cruel. Cruelty
concerning political death, according to Moore’s sharp, simple, and witty
analysis (Moore 2001), is something specifically modern that we can pro-
ject on the past—but we cannot find firm written evidence for it. Al-
though it would be jumping to conclusion to say the opposite—due to
ellipses and biases of the written history, which often did not give much
voice to the suffering classes—that is, that there was no suffering or cruel-
ty subjectively perceived, the story goes like this in the two perhaps most
important historical empires and their practices of extreme punishment.
If we judge by Justinian’s Digesta from the sixth century as the author-
itative source of the codified Roman law (Moore 2001, 732), we see three
methods in operation: decapitation, crucifixion, and burning at the stake,
while parricide offers a mythical death penalty, superseding the mytho-
logical imagination of the Greeks and giving much to Freud’s theories: a
parricide was to expect flogging and sewing into a sack with several
beasts then to be thrown into the sea or, if water was not handy, then
simply throwing with the beasts had to do (Moore 2001, 735–36). Al-
though one cannot judge how much of this or something else was really
administered, as Moore conveys, several documents suggest its real char-
acter beyond mere symbolic discourse. On the historically more familiar
spectacles of violence rendered to the postwar cinema audiences by the
grand Cecil B. DeMille style of Hollywood productions, dealing with the
Judeo-Christian themes and endlessly rerun on holy days, Moore’s style
is disarming:
It is important to notice that the actual function of the games in these
cases was simply entertainment. Watching people die was good clean
Roman fun! . . . The purpose of these spectacles had little to do with
punishing the rejects of Roman society and nothing to do with reform-
ing them. Their purpose was simply entertainment. . . . When one adds
to the cruelty of punishment for crime the cruelty of entertainment in
 A History of Violence 125

the Circus, the total impact horrifies a modern western observer. But
there is precious little evidence to show that Romans regarded this
cruelty as in any way unusual or superfluous. The sources give no hint
of a latent opposition. Romans enjoyed the spectacle of real cruelty the
way movie audiences today enjoy an artificial display of brutality.
(Moore 2001, 740–41)
The crown legal source for the Chinese empires, as Moore reminds us,
is a codex of the Five Punishments that acquired prototypical form in the
T’ang code of the seventh century. Together with so called Ten Abomina-
tions that express fear of disorder by listing breaches of moral conduct
especially associated with the lack of filial piety and so on, it has a numer-
ical style similar to menus such as eight treasures offered by the contem-
porary Chinese restaurants in the West. Divisions and subdivisions, de-
grees involving the width of the stick and the number of blows culminat-
ing in the eighteenth century Ch’ing code caught Moore’s special atten-
tion. On the theme he concluded, “Generations of bureaucratic attempts
to create a penal system putting like with like, according to objective
degrees of severity, produced a numerical system of penalties that would
have delighted Jeremy Bentham” (Moore 2001, 753–54). Together with
the notorious ling chi introduced by the Yuan, as the prolonged afflictive
crescendo, strangulation and decapitation are offered as the harshest
punishments, playing on the symbolic of the head, which is not solely a
Chinese thing but there it seems to have been especially appreciated
concerning the beliefs about afterlife. Anyway, Moore’s relevant point
here is that in China, in contrast to Rome, there is no panem et circenses
documentation of enjoyment. However, there is no proof of perceived
cruelty and opposition to it either. The American constitutional concept
of cruel and unusual punishment does not work in the Celestial Empire,
highly stratified and highly non-Tocquevillean, with baroque “cruelties”
precisely written into statutes. This perhaps does not say much about Far
East psychologies of the crowd in the times largely lost for written and
visual history. Rome, on the other hand, seems to have set a standard at
least for the medieval times, on which Elias concluded that the cruelty in
violence and punishment did not bring moral condemnation. On the
contrary, he even goes to write that enjoyment of the torture and murder
of others was allowed and fun, including the burning of cats (and some
other animals if available) in the public feasts (Elias 2000, 171). The pain
of others, humans and animals, did not count too much (see Darnton
1984).
This is illustrated in another interesting extreme episode from the
European soil, which also shows how disparities of power together with
various contingencies form factors of mutual punishment that culminate
in the moment when the victor exercises a brutal revenge, über-punish-
ment. The vicissitudes of French Jacquerie probably lingered in the collec-
tive conscious of both lords and peasants. In the middle of the fourteenth
126 Chapter 2

century, in high feudalism, the peasant uprising led by our acquaintance

Guillaume Cale took place in northern France. It entered history under
the auspices of aristocratic discourse: Jacquerie is but a derisive name
based on Jacques (Bonhomme, that is, Jack Goodfellow), the name of an
anonymous commoner. It wasn’t only an inarticulate and immature revo-
lution—another class uprising that one can subsume under the label of
premature Marxism—brought up by usual lineup of bad economy, fa-
mines, and taxes. Certain historical contingencies helped to ignite the
event, such as the fact of a weak king who lacked charisma and, let’s say,
tactical shortcomings and discrepancies in harmonious national body,
namely, an aristocracy running away at Courtrai and abandoning the
king at Poitiers at the mercy of their enemy, the English. Add some ter-
rorizing mercenaries and you can understand how immediately a taxing
campaign can ignite the uprising in 1358. Chronicles, often documents of
class bias with a touch of romance and myth, of unreliable and inflated
numbers, documents usually written by clergy and aristocratic court
scriveners, offered a picture of violence that was, however, beyond
doubt. Unstructured punishment unleashed on the ruling class was real-
ized in the form of roasting and raping, while the reprisal after crushing
of the rebellion was as expectedly brutal and massive, as another exam-
ple of collective punishment on a class basis. In a peasant uprising in
Zagorje, in northern Croatia, a formally parallel event that took place
about two centuries later, after the defeat and the slaughtering of the
peasant army. Matija Gubec, a peasant leader, was symbolically crowned
with a heated iron crown in Zagreb—or at least such is the popular mem-
ory. Guillaume Cale was also tortured. The difference is that he was
simply decapitated after he was naïve enough to visit the aristocratic
camp for “truce” talks. His army was slaughtered afterward. Punish-
ments can be small ritualized acts of war, as Foucault’s analyses point out
in a seductive rhetoric. But before answering why, the prior step is to
sketch what exactly replaced this model of punishment, profiled by such
events as violent uprisings where relations of power were questioned
and reprisals ensued that sought to reestablish them. The usual drama of
juxtaposing two penal worlds ensues.
The scenes I have invoked did not disappear in a single moment from
the face of the penal history. The mass butchering of upheavals or indi-
vidualized theaters of torture were replaced by other suffering: from
chaos of violence or its structured grotesque symbolization released on
the body of the condemned, the tortured bodies were replaced with lined
up bodies excluded and disciplined, moving in a circular motion. Maybe
with tortured souls, if we follow Nietzsche and Foucault. It is, in the
language of paintings, the replacement of Pieter Bruegel the Elder’s Tri-
umph of Death, from about 1562, depicting wars, executions, and violence
in the times of Black Death, with La ronde des prisonniers (The Prisoners’
Round), Van Gogh’s 1890 oil on canvas embellishing the cover of The
 A History of Violence 127

Oxford’s History of the Prison (Morris and Rothman 1997). 8 This juxtaposi-
tion of pictures encapsulates the final forms of punishment where ex-
treme things become normal and vice versa. An All Hallows imaginar-
ium of burning potatoes and pumpkins eerily celebrating death is re-
placed with the routine circular parades of disciplined bodies. In a famil-
iar Foucauldian verse, the outward carnage and hacking of the bodies
were replaced by the inner torture of constrained and disciplined souls.
Even if it is not a hidden paradigm of a modern society, let’s take a quick
look at prison and some vignettes from this penal world when it was not
a commonplace, followed by some muddle in the middle catalogue
placed between the two worlds, before looking at discourses that attempt
to explain penal change.
What is now considered normal or passively accepted as the way to
go was not long ago considered extreme. The change brought new hor-
rors, at least in the archetypal solitude of prison where architecture
merges with religious discourse. Prison was not a rotting dungeon from
the films any more. Seclusion was punishment by itself and, ideally, the
vehicle of penance and transformation. Charles Dickens, who visited
Eastern State Penitentiary as Tocqueville and Beaumont a decade before
him, was (unlike his predecessors) not impressed by the reformist efforts
of the members of the Philadelphia Society for Alleviating the Miseries of
Public Prisons. “Slow and daily tampering with the mysteries of the
brain,” as he put it in Philadelphia and Its Solitary Prison, the seventh chap-
ter of his American Notes, was “immeasurably worse than any torture of
the body” (Dickens 1842). Other literary giants also visited prisons. For
example, the famous Danish author of fairy tales who also busy writing
longish travelogues visited a prison in Mariestad in Sweden. Hans Chris-
tian Andersen shared Dickens’s view on some social matters and poverty
(and friendship up to the moment when the “bony bore” overstayed his
welcome in Dickens’s home) but was a bit more optimistic concerning
prisons of the era and solitary confinement, seeing it as more humane
than “the martyr-filled prisons of the Inquisition . . . the crowds chained
together in the Bagnes . . . the hot, lead chambers of Venice” claiming that
“the radiance of God“ would follow sunbeams and shine in the hearts of
the lonely prisoners in their cells, although he also noticed that this “well-
built machine” was “a nightmare for the spirit” (Andersen 1851; see also
Scharff Smith 2004, 209).
The protests and doubts were to no avail since other methods generat-
ed public unrest. Although there were attempts to follow Beccaria’s ideas
warranting various penalties, public punishment was a nuisance for the
government, again as in Foucault’s account interpreting the last convict
parades and voiture cellulaire episode, that is, the introduction of prison
vehicles or the historical paddy wagons transporting prisoners (Foucault
1975). Ben Franklin as the president of Pennsylvania limited the usage of
death penalty in 1786 and substituted chain gangs for it, which caused
128 Chapter 2

unrest and incidents, setting punishment back on the general course of

secluding itself from the public. Walnut Street Jail, more of a classical jail,
was upgraded to a penitentiary house with solitary confinement and
working program in 1790, foreshadowing our Eastern State Penitentiary
that was to open thirty years later. There is no lack of examples. Virginia,
governed by another Founding Father, Thomas Jefferson, followed a sim-
ilar pattern: the scope of capital punishment was reduced, replaced with
public penal work, but the result was again the same—prison.
The technologies of imprisonment evolved, as is well known. Against
the solitary confinement that, affirming Dickens’s fears and old Aristo-
tle’s ideas of humans as social/political animals, correlated well with sui-
cide rate and was economically less versatile, prevailed the so-called Au-
burn system, named after New York’s Auburn prison. Against the world
of isolated manufacturers, it promoted collective work efforts, also initial-
ly framed within a religious discourse as a congregate system, while the
Elmira “reformatory” for young offenders introduced a classification sys-
tem and operationalized ambitions for reeducation of prisoners. It is this
new beast in a new world that offered an excuse for our young de Toc-
queville to visit America. Together with Gustave de Beaumont and with
an official mandate by Louis Philippe, he went on a long research journey
across the pond to study the American penal system and render a report
that was to serve to reform punishment in France, and he was impressed
much more by what he saw than grumpy Adorno (Offe 2005), who later
also offered some sporadic remarks on the birth of the prison, in the
sketches concluding the Dialectic of Enlightenment—where imprisonment
is seen as a “bourgeois affair” and rows of cells as Leibnizian monads
(Horkheimer and Adorno 2002, 187). Simultaneously, looking back at our
chapter from an historical perspective, the death penalty, where it re-
mained—not only in Western societies, and at least when they were not
in war—was transmuted from the scaffold for the Braveheart and erui-
tion of the entrails of the condemned as a quid pro quo for mutiny against
the sovereign, to the emotional distress of the protagonists of Herzog’s
Into the Abyss abhorred by the terror of lethal injection, meticulous proce-
dures, and bureaucratic time tables of the modern death chambers. 9
In between the two paradigms—attack on the body in pain and disci-
plinary imprisonment, maximization of bodily pain through afflictive
capital punishment and attempted minimization of bodily pain through
modern technologies—is the historical baroque that survived in the stat-
utes of the small cities or larger political formations. Croatian author
Matija Vučetić, Latinized as Matthias Vuchetich, wrote Institutiones Iuris
Criminalis Hungarici (1819) published in Budim (now part of larger conur-
bation usually called Budapest), which offer a paradigmatic example. 10
Institutions of Hungarian Penal Law is a textbook that offers a display of the
waning penal system. To be sure, the source contains neither statistics
nor information on the intricacies of the daily work of the then-street-
 A History of Violence 129

level bureaucracy of punishment that constitute the standard of today’s

policy studies, but it still serves as a display of the legal penal possibilities
of the time. Eternal problems of implementation aside, the source arouses
further interest because of categories stretching the concept of punish-
ment beyond the narrow ambit of penal law to the sociology and general
politics of punishment.
The book gives an overview of antiquarian penal schemes of the
Habsburg Monarchy that were in much of their gothic formality swept
away by history, which already in the preceding century had young En-
lightenment superstar Beccaria writing his reformatory tract. The key
distinction still revolves around physical and psychological punishments
(poenae physicae and poenae psychologicae). The first are divided into death
and corporal punishment while the second basically divide themselves
into shaming and money, the hitting of one’s societal standing or purse.
Restrictions of freedom, which include prison, still appear as a residual
category in this historical penal discourse that has proliferated itself
mostly around various methods of execution and corporal infliction of
pain. The death penalty (poena capitalis) is still the cornerstone of the
penal system, subdivided into simple (poena capitalis simplex) and qual-
ified (poena capitalis qualificata) variants. 11 Simple is not so simple and
would mostly qualify as torture today. In any case, it does not involve
special torturing that is not intrinsic to the killing. Instead it includes
some of the per se lethal methods such as decapitation with a sword
(poena gladii), hanging or killing by fork (supplicium furcarum); crucifixion
(patibulus) or running over the condemned (traiectio), or drowning (suffo-
catio in aqua). If this already sounds a bit like a Borges’s Chinese encyclo-
pedia, the qualified type reinforces this impression. It includes extra tor-
ture efforts before, during, or after the infliction of death, such as—but
not limited to—the amputation of limbs or tongue, plucking parts of the
body by heated pliers, burning, crushing with a cart (contusio rotae), dis-
section (corporis disectio), or alive burial (vivi defossio). These can be ap-
plied if the sovereign or his representative is killed, especially for cases of
murdering public officials (homicidum in officiales publicos commissum) or
public functionaries (caedes officialium publicorum) such as viceroys,
governors, judges, or executioners, while attacks on them when they are
on duty is treated as an assault on the government itself (see Mak 2001,
267).
Corporal punishment (poenae corporales) is divided into punishments
that mutilate the body (mutilantes) such us digging out the eyes (oculorum
eruitio), amputation of nose or hands (amputatio nasi vel manuum), avul-
sion of the tongue (evulsio linguae), and branding or other physical stig-
matization (inustio stigmatis). Those, on the other hand, that inflict pain
but without permanent mutilation (poenae corporis afflicativae in specie)
involve methods such as beating with the stick (pulsatio baculis), whip-
ping (pulsatio scutica), or birching (pulsatio virgis). However, very interest-
130 Chapter 2

ing are those punishments categorized as punishments of honor that also

count as the subject matter of penal law. For the most part, they clearly
belong to this treatise since they include old-fashioned methods of public
shaming (poenae stricte ignominiosae) such as knotting to a pillar (deligatio
ad palum) or locking into a cage Ezra Pound style or in the style of the
Zagreb Zoo (where you can enter into a cage that has homo sapiens
written on it: it is a small one, a relic from the former bestiary), only the
cage is mobile (cavea varsatilis). Others are more indirect in nature (poenae
pudorem excitantes) and should cause shame by virtue of judicial repri-
mand (obiurgatio iudicalis) or public revocation (revocatio publica). In the
third subdivision, the sanction is also indirect but involves diffuse action
of the community understood as a spontaneous agent of public penal
law. The example is infamy (infamia), understood as a punishment, al-
though it does not involve direct action of the state (Mak 2001, 254–55).
Instead, it comes to a walk of shame without specific force applied or the
installation of a ritual setting that invites the crowd to shout its insults.
This punishment, especially present today in its virtual electronic form,
leaves derisive postures and jets of spittle to specifically inspired individ-
uals and groups who like to pick on the scapegoat. 12
The last category, of the revocation of freedom by the sovereign pow-
er (poena libertatem restringens), recognizes several forms of imprisonment
(poena carceris) beyond simple incarceration (carcer simpliciter), which also
wears inegalitarian marks of the day. It does not carry a single name.
According to the class and status of the incarcerated, it is called civic,
aristocratic, academic (!), or ecclesiastic (carcer civicus, carcer nobilium,
carcer academicus, carcer ecclesiasticus). The qualified forms include chains
(condemnatio ad vincula), compulsory work (ergastulum), and more disci-
plinary correctional home (domus correctoria) that take into account the
dawn of the disciplinary age. On the other side, this work may be public,
according to the more Keynesian sentence to public labor (condemnatio ad
opus publicum) and classical relegation (relegatio), which included two
forms of restriction of freedom: the restriction of movement (confinatio-
nem) and exile (exilium). All in all, in this textbook and its classifications
that instruct the practice of law and represent professional opinio juris of
the day, we see penal modernity but also antiquity mixed together, conti-
nuity and change of penal modes, in an age that will—some places it sets
off earlier, other places later—soon restrict the wide palette of punish-
ments and concentrate itself on the last residual, the prison—although
that is at least a bit Whiggish and a bit simplifying thing to say.
Simultaneously, on the theoretical level in the sense of the former
chapter, one may observe the changing of the sovereignty that was once
protected with a special category of crimes called lèse majesté. Personal
insult to the powerful ruler was a grave crime that was secularized and
abstracted as treason of the state (from a Durkheimian perspective treat-
ed below, the offense to the sovereign appears itself as a secularization of
 A History of Violence 131

sacral taboos of the past). Similarly to the penal provisions for suicide, the
offense to the sovereign has, as a special punishment, waned in form or
in practice, remaining in the statutes in the category of the offences
against the state and its symbols like flag burning that provoke constitu-
tional judicial interpretation invoking freedom of expression of the liberal
subjects. The fly defecating on the portrait of the Kaiser, a scene that
humorously starts Good Soldier Švejk with a hilarious protagonist defying
all authorities and merrily beating Hungarians, Slovaks, or whomever
stands in his way, is hardly possible today, at least in the West; there are
no agents provocateurs to nab the suspects, who can speak against the
sovereign as far as they like. Instead of stern retribution against those
unlucky to be caught, it was a milder benevolent mesh for everyone with
smaller holes and a more thorough grip on society. Parens patria, a benev-
olent discipline that once worked for kids who were protected from
themselves by the sovereign as their surrogate public parent, to be en-
meshed by reeducational efforts of social work instead of punishment,
was now a model for all. The sovereign changed his parental role from
one that punished by force to one that instills ideology in the souls of
subjects who have strayed away from the expected behavioral patterns.
Or at least that is one of the ideal-typic oppositions one can employ
theoretically to highlight some of the changes in historical material.
Before we turn to the probing of the theoretical discourses, I finish this
section with a small scandal that illustrates the everlasting flux of penal
policy caught in times (and places, more thoroughly thematized in the
next chapter). It is the story of the overfeeding of the modern penal ma-
chines. As is reasonably well known, California, the most populated
American state, has been plagued for a long time with a policy problem
of prison overcrowding. It has faced judicial scrutiny and restrictions on
the basis of human rights infringements; the system could not provide
minimal space, health care, and other things that, if lacking today, would
make punishment cruel and unusual—especially if it escalates to a “med-
ical humanitarian crisis” (Simon 2014), as the judicial interpretation ad-
justs the constitutional definition to the modern sensibilities of at least
part of the community. Furthermore, public spending and an overarch-
ing expensive bureaucracy are political arguments that work against ex-
cessive prisonization, forming a “humonetarian” discourse (Aviram
2015) that exchanges the logic of human rights’ protection for a “cheap on
crime” motto, and that doesn’t treat convicts’ rights as ends but is per-
haps more efficient working in the same direction as the prisoners’ hu-
man rights advocates. We would maybe even like punishment to be
harsher and to imprison many of the guilty transgressors, but if prison is
overblown and burdens the taxpayers, it should be reduced. In a state
that was described as America, “only more so” (a Wallace Stegner quip,
quoted on the flaps of Simon’s 2014 book), thus appears an impetus to
find, according to criminal justice reform advocate Marc Mauer, “a public
132 Chapter 2

safety strategy beyond incarceration”: it is the recent development fore-

shadowed by Proposition 47, approved by the voters on the 2014 referen-
dum, redefining nonviolent offenses as misdemeanors instead of felonies,
to channel offenders to other forms of punishment or correction instead
of state prisons (McCauley 2014). Instead of the horror of the scaffold or
the excesses of a warehousing type of imprisonment, bashful signs of
reformism and humanization can be seen, at least locally, against the age-
old impulses of retributivism amplified by populist politics that seek to
punish no matter the cost. When the tides turn, it is suggested that histo-
ry perhaps may have multiple streams, sometimes working together or
sometimes one against the other; we should not forget that penal technol-
ogies and arrangements evolve, and that in the global age of migration,
theoretical and practical questioning of the borders, penal machines can
be fed on a different human diet in total institutions that bear new names.
Besides, violence may return, bringing back punishment. The question of
the following sections is how to explain these changes, both in violence
and punishment. Although the singular cases are complex and often
quite unpredictable, there are simpler discourses, often extreme them-
selves, that are worth probing since they illustrate quite general ways of
making sense of the suggested extreme changes in the historical forms
and practices of punishment.

THEORIES OF HISTORICAL CHANGE IN PUNISHMENT:

E PLURIBUS UNUM?

There is a usual way to look at crime and punishment that is not wrong
but it is, alas, too simple for social science. Roughly, it goes like this:
Violence from individuals demands counterviolence from the state, that
is, punishment in order to redeem it on the individual level (justice) and
to curb it on general level (security and peace). This is the pillar of any
organized community. Some things are forbidden. Although some may
pass through the mesh, generally there are consequences for doing mis-
deeds. If the penal system performs its function, the majority of trans-
gressions should be punished to preserve the rules of conduct of a civil-
ized community. Less ambitiously, at least, perpetrators should behave
and expect a reaction that is not so far from the Beccarian ideal of punish-
ment, the one that is not drastic but is sure to come and exceeds the
private benefits of the crime. Thus we have the following chain of reason-
ing that is both empirical and normative: violence from evil individuals
causes evil from the state. Alternatively, the state is evil and punishes the
good, who suffer, work for change, or violently rebel; here this funda-
mental difference between ideologies is not so important. The important
thing is to note that punishment is a reaction to the crime that precedes it.
 A History of Violence 133

But this is a way of thinking that does not work for theories of punish-
ment, which often brush their picture of violence and punishment in
wide historical strokes. As Melossi explains, speaking of the theories such
as those I present:
What all these contributions had in common was their refusal to be
content with what I like to call the “legal syllogism,” i.e. the common-
sensical idea, originating in the classical school of criminal law, that
punishment is simply the consequence of crime and that, therefore, if
there is a need for sociological explanation, such explanation concerns
criminal behavior and not the punishment of this behavior. In this
view, in fact, the latter was not conceivable independently of crime:
social structure explains crime and crime explains punishment. This is
the way lawyers and judges and most of those who are in contact with
the criminal justice system, tend to think. This is the way the general
public tends to think too. (Melossi 1989, 311)
The point here is quite simple. Punishment changes in time, and in the
course of change it often transforms drastically for the same crime within
a culture or tradition. It changes as the society changes and, as crime itself
may be seen as a consequence or function of different variables (econo-
my, psychology, politics, and so on), so punishment may depend on
other variables not necessarily having much to do with crime per se.
Economy is the usual culprit, as in Marxist accounts, culture can be sin-
gled out (Garland 2001), or both (Wacquant 2009), as well as the collective
psychology or its changes through societal transformations (Elias 2000)
and of course, power, which I choose to treat separately in the fourth
chapter, relying mostly on a Foucauldian framework, since I see it as a
compound variable or an encompassing term for other things that enable
action for some and constrain it for others.
These are the discourses that emerge in the academic milieu, have
presuppositions of an ivory tower, and do not necessarily have a direct
impact on penal practice. They may be, but are not necessarily, pragmatic
tools for action, nor are they necessarily ideological reflections that
emerge from practice of reproduction of life in order to return to it. They
may be mirrors—not of nature, but of society. And they might also not be
structural and theoretical, but instead highlight contingencies of situa-
tions that lead to certain outcomes of violence and punishment or histori-
cally trace bizarre paradigmatic episodes of violence and punishment,
such as during the papacy of the Borgias as a part of a larger folly of
provoking Protestant secession and wars of religion, British colonial poli-
cies in America that accelerated the formation of the United States, or in
the sinking in the destructive Vietnam war episode that historian Barbara
Tuchman, in a triptych of studies of strange policies contrary to the inter-
est of their authors, metaphorically labeled “the march of folly” (Tuch-
man 1985).
134 Chapter 2

I begin with Durkheim’s rule of method that informs these attempts

and continue into his explanation of punishment that interested him to-
gether with fundamental traits of society, such as religious life and its
economic organization through the division of labor. Following Durk-
heim, Rusche and Kirchheimer present classical and most influential
Marxist account. Elias has a talent for interpretation but is a bit thin and
anecdotal on violence and punishment (which is arguably not a method-
ological problem for our mapping and probing treatise, at least for the
thin part). He is venerated by Pinker, whose account of the reduction of
violence contra its contemporary dramatization, framed as an eclectic
historical explanation, is discussed after Elias. And as for Foucault, he
tells a similar story but dressed in different categories: it is the genealogy
of a Western soul (parallel with Elias’s formation of homo clausus, the
inhibited modern man. However, since Foucault’s story is closely paired
with politics of power, it is recounted in the chapter of power.
These and other discourses on the history of punishment may be a bit
dry or may express concern about the subject matter; some may be seri-
ous and prophetic, some ironic, some dry. They have different political
overtones and policy implications if the latter are sought in them.
Hypotheses derived from them may be combined or juxtaposed, differ-
ences glossed over or highlighted. This may be done altogether to arrive
at an eclectic but not drastically incoherent cocktail or to a chaotic motley
of theories and ideas. If one was to seek pairs, he would probably lump
together Durkheim and Rusche, focused on (r)evolution, or Elias and
Foucault, focused on the historical change of the subject. Or she would
match exactly the opposite pairs: Durkheim and Foucault as French au-
thors theorizing on power shaping punishment, Rusche and Foucault as
critical theorists of a kind, and so on. I offer small “crosswords” in that
sense in conclusion at the end of the chapter.

DURKHEIM’S SOCIOLOGY OF PUNISHMENT: TWO LAWS OF

PENAL EVOLUTION

There is nowadays a tendency of agnosticism toward progress. We may

say that something changes, and describe how something changes, but
we might not call it development and evolution since it would be myopic
and perhaps politically incorrect. There is some truth to it, but it also
sounds false when forced as an ideological dogma. In any event, Durk-
heim was living before these times. He was not a fiddler of decadence
looking back to an antique era for role models of the lost golden age of
civilization but instead offered a narrative of progress distinguishing the
backward and rudimentary from the advanced and developed, long be-
fore Lévi-Strauss and anthropologists doing ethnography would call this
ethnocentrism and point to normative operations of discourse imposing
 A History of Violence 135

standards of one culture onto the other. This tendency of evaluation is

present in Durkheim’s discourse but the things he said, whether this
layer should be written off or not, is one of the birthplaces of social
science providing a historical explanation of punishment. And one must
bear in mind that this is a type of thinking consistently developed from
the methodological approach, an approach that constitutes one way to do
sociology of punishment, while concrete applications are perhaps of an
anecdotal descriptive type formulated in the moment when one sees
what is in front of one’s eyes and decides to call that a law while the
causal mechanism remains undertheorized. And that moment was the
birth and proliferation of prison replacing the work of power on the
body. It spawned two laws of penal evolution formulated according to
the rules of the sociological method paired with native functionalism of
sociology that, as a child of the modern, often transsubstantialized na-
tion-state into society (e.g., one writes of society in general, but in fact
writes about the French society semistructured by the French state). That
was not wrong but was not very far-sighted either: as if he read Pope,
Durkheim sort of concluded that everything that is there is right, if in
balance. Crime and penality operated outside the horrors of anomie.
Rules of the sociological method in Durkheim have a bias toward
collectivism. That means they tend to see society as prior to the individu-
al. It is expressed as a rule that the social scientist, in trying to explain
social phenomena, has to approach them as if they were things, not of
course literally, but as an objective, solid phenomena that have their own
reality and can be explained on the societal level (see Durkheim 2001, 10).
Punishment is such a beast, one that works from the outside on the indi-
vidual: “I do not conform to ordinary conventions, if in my mode of dress
I pay no heed to what is customary in my country and in my social class,
the laughter I provoke, the social distance at which I am kept, produce,
although in a more mitigated form, the same results as any real penalty.
In other cases, although it may be indirect, constraint is no less effective”
(Durkheim 1982, 51). It is, in other words, in essence the same as social-
ization of children, a process by which a society imposes social norms on
individuals, transforming them into its members, as the Borg assimilates
unlucky space races it encounters in Star Trek.
Punishment is as integral a part of society as crime is. To consider
social facts as things means to approach without moralizing, at least in its
classical form. Although Durkheim opposed (American) pragmatism in
his lectures at Sorbonne, the discourse simply accepts the “what works”
maxim by ascribing morality to the generality, which can sustain itself by
deciding to treat “deviations” with medical metaphors: “Those facts
which appear in the most common forms we shall call normal, and the
rest morbid or pathological” (Durkheim 1982, 91). This gives an interest-
ing position on crime that acts as a sociological postulate while an arche-
ology of crime in modern society might unmask it as a specific discourse
136 Chapter 2

on crime that is typical for the balance of power in modern society, with
its policing functions and crime as a cog in the mechanism of, let’s say,
bourgeois supremacy (see, for example, Foucault 1980, 16–18). But this
clash of discourses is not important enough to be developed here. For
Durkheim, crime is not an original sin but a part of normal functioning
society, even as necessary as a drop of poison in homeopathic medicine.
Not so impressed by Hume’s logical puritanism, he develops ought from
is: crime always is, so it is right, or to again put it into pragmatist terms,
perhaps even Hegelian cunning of reason in another discursive register:
it is useful (see Durkheim 1982, 98–99, 101). This is, for Durkheim, an-
other rule of method important to understand punishment, which is a
precondition to understand crime: “And it is therefore punishment that
must be our starting point if we wish to understand crime,” he writes
(Durkheim 1982, 80). The Aristotelian causa efficiens, referring to the cau-
sality of production of a thing, must be distinguished from the function
of the social thing performed be it violence, crime, or punishment. This is
probably the birthplace, or at least an early paradigmatic spot, of the
modern explanatory discourse on punishment (see Durkheim 2001, 58).
Punishment is a theme for ethics, philosophy, psychology, and so
on—Durkheim discusses the known differences between utilitarians and
Kantians—but as a sociological subject it is a social variable, not an ab-
straction. Thus it is a thing with cause and function to be explained.
Durkheim’s treatment of the theme, an exercise in historical comparative
sociology—sociology as such in his words, if not “purely descriptive”—is
found in his classic essay published at the very end of the nineteenth
century as Deux lois de l’évolution pénale, in L’Année sociologique, volume
IV, 1899–1900 (Durkheim 2002a). 13 He is eager to distinguish two laws,
quantitative and qualitative, that should be independent but they work
well together. The first, quantitative, speaks of societal development and
has two components: the dependent variable, intensity of punishment,
having to do with torture and the baroque of punishment sketched earli-
er, which is greater if societies are less developed in the Durkheimian
sense of the division of labor, organic solidarity, and so on, while the
second component is specifically political and speaks of the centralization
of power as a factor contributing to the intensity of punishment. It is, in
fact, a theme developed in Foucault, on which I elaborate after the com-
parative fact finding in the next chapter. The point is that political power
is an independent variable analytically detached from societal develop-
ment—that is, absolutism—or to jump into the history of the future for
Durkheim, totalitarianism in developed industrialized societies, which
has produced excesses of punishment. It intensifies la peine, quantitative-
ly and qualitatively we might add, but these are also distinguished: tor-
ture can be born within the walls of a concentration camp, but the horror
is in massive executions and exhaustions to death that are not concentrat-
ed on the craft of staging the theater plays of pain in the individual cases..
 A History of Violence 137

The second law speaks of prison; a society that is less developed does not
know this method of punishment, or to put it more abstractly, privation
of freedom. A société moins éléve tends not to incarcerate, especially as a
normal method of repressive action. Prisons do not appear ex nihilo,
since the “desirable is not the possible,” and imprisonment presupposes
certain logistics, technology, and organization, namely,
the existence of public establishments, sufficiently spacious, militarily
managed, arranged in such a way as to prevent communications with
the outside, and so on. Such arrangements are not improvised on the
spur of the moment; no traces of them exist in less advanced soci-
eties. … But as the social horizon is extended, as collective life, instead
of being dispersed into a vast number of minor localities where it can
manage only a meager existence, is concentrated on a more restricted
number of spots, it simultaneously becomes more intense and more
continuous. (Durkheim 2002a, 17)
With the development of societies, the division of labor and new
forms of solidarity (Durkheim 1984; Spitzer 1975), crime and punishment
change, both being moving targets in societal history. However, Durk-
heim notices something interesting here, evoking the theme of lost
transcendence and symbolic taboos once protected by punishment.
Speaking of “mores, traditions, and religion” as “collective things” (choses
collectives), he points out that these were sacral and specially protected,
often with brutal punishment, while individual damages, in a (today)
shocking discursive chain of “murders, thefts, violence, and frauds of all
kinds” (Durkheim 2002a, 20), were punished less. The reason is, if we
may infer so, that an individual was expandable in a context of lots of
births and lots of deaths, and simple crime, even if we speak of murder or
rape, could be treated as if it is there merely to “offend only individuals”:
It follows that to the extent that the former cease to be treated as crimes,
they are withdrawn from penal law to be replaced by the latter, a
weakening of punishment on the average must necessarily occur. But
this weakening cannot last longer than this substitution. A time must
come—it has nearly arrived—when this process will have to be com-
pleted, when attacks against persons will make up the whole of the
criminal law, when even what remains of the others will not be consid-
ered but in dependence on the former. The retreat will then stop. Be-
cause there is no reason to believe that human criminality must, in its
turn, regress in the same way as the punishments which repress it.
Instead, everything leads us to predict that it will develop further, that
the list of acts qualified as criminal will grow longer and that their
criminal character will be accentuated. Frauds and injustice which yes-
terday left the public consciousness just about indifferent, today arouse
its revulsion. (Durkheim 2002a, 26)
On the other hand, the division of power, checks, and balances, para-
digmatically represented in the American constitutional discourse and
138 Chapter 2

liberal political theory, work against the excesses of punishment over the
individual. 14 Logically, “the more or less absolute central power” is the
one without such checks and balances, where “all the governing func-
tions of the society” are placed “in one and the same hand” (Durkheim
2002a, 6), and that instance, according to Durkheim, breeds harsher pun-
ishments. For example, the crimes of lèse-majesté and drastic punishments
for them are explained with historical consolidation of monarchic power,
as is, more generally, the proliferation of punishments for various acts
and drastic penalties in the times of monarchies emerging from disjointed
feudalism: “The apogee of the absolute monarchy is marked by the apo-
gee of repression (Durkheim 2002a, 12). Dark tyranny or its brighter face
of an enlightened absolute monarchy breeds an excess of punishments—
an empirical hypothesis that easily finds corroboration but also opens
space for nuances and adjustments, since even concentrated power can
be used in various ways. Even if it is hard to find many true and wise
philosopher-kings in history, not every autocracy necessarily leads to
draconic punishments and there are such strange creatures as peaceful
despots (the historical and somewhat legendary example of the compas-
sionate Ashoka the Great comes to my mind, venerating peace in his
kingdom after the destructive Kalinga War—and even if it is, according
to H. G. Wells, a lone star example, it is still worth mentioning).
The qualitative hypothesis, on the other hand, discusses long-term
developments that lead to the birth and proliferation of prison. If we
exaggerate a bit for analytical purposes, we can agree with Durkheim: in
primitive societies, there is no individuality. Questions of knowledge in-
volved even in this simple technology aside, prison as a means of preven-
tion thus had no sense in such ancient settings, whether in history or in
an exotic anthropological present. Simply put, “it does not respond to
any need” in the less developed societies (Durkheim 2002a, 16). The dif-
ference between the desirable and the possible is, as we have seen, an
important tenet for Durkheim’s method. The prison became possible, as
the above quote suggested, with the institutional and logistic capacity to
erect it, and it then became useful. Sentiments have changed; individual-
ity and compassion developed alongside the organization of society,
which was absent even in grandiose empires that, quite understandably
within this discourse, did not know their punishments as cruel and un-
usual. They became such with societal development. And with the fur-
ther development of society, from reading Durkheim it follows that pun-
ishment might disappear or, at least when probing the extremes I am
disposed to see such an extreme of extremes, the one largely making this
book and other literature on punishment obsolete beyond historical curi-
osity. The question of how are these positions and projections consistent
with the persistence of death penalty in the United States, for example in
Garland’s interpretation (Garland 2010), I will here leave aside. One must
not take it naïvely in any case, and it is hard not to agree with the idea
 A History of Violence 139

that even if there is an evolution—a sociological profanization of Hege-

lian spiritualist philosophical loftiness, a Whig history of punishment—it
is at least not linear and involves several tracks such as politics as a story
on its own. And to complicate things a bit more, there is, contra globaliza-
tion, this thing known as multiculturalism and clash of values where not
only the United States and ISIS (or whoever) stand in some imaginable
binary opposition of the extremes in a “clash of civilizations.” We can
witness much more mixing or fractioning in a global melting pot that
might, if it simply doesn’t continue boiling as usual, explode instead of
calming down. However, for now, punishment persists as in the old
chanson performed by Claude François globally popularized by Sinatra
with somewhat different lyrics, “as usual”: Comme d’habitude . . .

RUSCHE AND KIRCHHEIMER: PUNISHMENT AND PROLETARIAT

WITHIN A PENAL ECONOMY

Discussing Marx and the death penalty, the rudimentary tenet of this
approach already emerged: punishment is not a reflection of morals but
of economy. Punishments have the same cause as other things of super-
structure that in the camera obscura of upside-down ideological world
appear as causes. This is the way to interpret punishment of any day in
history—by linking it to economy and class structure of society. It is not
so strange for the Durkheimian discourse, but the latter is skeptical of the
monocausality of punishment and might, from this perspective, look as
too bourgeoisly complacent politically and not nominalistic enough epis-
temologically. Instead of generally grounding it in political economy,
Rusche’s and less importantly Kirchheimer’s book associates punishment
and the labor market, in a heuristic maxim to interpret historical changes
in punishment, and their ideas are sometimes framed as a hypothesis that
can be empirically tested (see Melossi 2003, xxiii–xxxvii).
Against Durkheim for whom punishment is a language expressing
public conscience of society, a more or less simple just deserts avant la
lettre of American criminology theorizing about it, a universal notwith-
standing its qualitative and quantitative differences, Rusche and Kirch-
heimer’s approach is diametrically opposite. Their position is that there is
no transcendental idea of punishment; there is no punishment as such
(Rusche and Kirchheimer 2003, 5). That is not an attack on Plato or con-
ceptual thinking but a way to highlight that punishment differs vastly
according to the societal formation and that it always has to be studied in
its concrete form to escape the fog of ideology. This general position ties
productive forces to the forms of punishment, first of all pointing out that
slavery as punishment cannot exist without a slave economy, prison la-
bor without manufacture or industry, penal colonies without colonialism,
and, if we observe longer periods and more persistent politico-economic
140 Chapter 2

institutions, fines without monetary economy (Rusche and Kirchheimer

2003, 6). The very rich and, tentatively said, untroublesome narrative
manages to make these connections empirically in a relatively precise
manner—from the early (European) Middle Ages when “[c]rime was
looked upon as an act of war” and, since there was still no state in the
sense of centralization of power and functioning bureaucracy, “the public
peace was endangered by the smallest quarrel between neighbors” (Rus-
che and Kirchheimer 2003, 9) to the then “new trends in fascism.”
It is a story endowed with metaphoric imagination, where cutting off
parts of the body, branding, and marking worked as a criminal dossier of
the times for the lower classes. It is also a story where many sacralized
thinkers did not fare too well. They were turned into petty ideologists in
contrast to the acute observations and daring utopianism of Thomas
More, who was anyway decapitated by the sometimes capricious Henry
VIII (More’s beard did not share the guilt and was spared, according to
the anecdotal history of executions and death-bed exclamations). Two
examples will suffice. Bacon’s moralistic pessimism that criticized the
colonial practices blending with punishment—“the scum of people” was
exported to plantations—produced one of the more daring attacks not
only on punishment but on morality itself: “We may add that the reform
of convicts achieved under the favorable social conditions in the North
American colonies proves conclusively that the categories good and bad,
honest and criminal, are strictly relative” (Rusche and Kirchheimer 2003,
61–62). It is all a product of milieu, an idea that, as we shall see, Dostoy-
evsky and other conservatives found naïve.
Kant, who argued against teleology, arguing for the execution of the
last murderer even if the community were about to dissolve, was, as
Hegel, a good ideological source for harsher punishment in the context of
a deteriorating economy and the need of protection of the bourgeoisie: a
“rigid exclusion” of teleology from penal law was a thing of the day,
taking primacy in governing punishment over more flexible utilitarian-
ism, for situations where penal law is breached (Rusche and Kirchheimer
2003, 100–102). This is only a single episode in longer trends of moraliz-
ing that finds comfort in criticizing individuals and their moral deprav-
ity, a recurring if not eternal
return to the pessimistic doctrine that man’s evil nature can be tamed
only by depressing the prison standard below that of the lowest
classes. The futility of severe punishments and cruel treatment may be
proved a thousand times, but so long as society is unable to solve its
social problems, repression, the easy way out, will always be accepted.
It provides the illusion of security by covering the symptoms of social
disease with a system of legal and moral value judgments. (Rusche and
Kirchheimer 2003, 207)
 A History of Violence 141

If saying that economy and penal policy are intertwined is a banal

truism, and stating that economical forms and penal forms generally cor-
relate, or that the first constitutes the second is altogether still too vague,
for those more demanding there is a concrete testable hypothesis correlat-
ing labor market as the key part of capitalist economy and punishment,
specifically imprisonment. An amendment to the 1834 Poor Laws suc-
cinctly conveys this narrower meaning: conditions in the workhouse
have to be worse than the worst job outside. There is, then, an observable
correlation, even a causal link, between quality and quantity of labor
demand and punishment. In one of the possible renditions, the explana-
tory mechanism is the following: if there is a surplus of labor, prisons will
be more crowded, with worse conditions of imprisonment and punish-
ment being harsher, but if there is a lack of labor, prisons will be more or
less emptied, that is, run with their capacity far from being overbur-
dened, with better conditions behind bars and penalties will be milder,
usually paired with paid work.
The theory seems to have delighted quantitatively disposed social sci-
entists eager for hypotheses testing. The happy marriage of sociology and
econometrics generated empirical research, specifications and specific ap-
plications, confirmations, refutations, amendments, and interpretations
(see Melossi 2003, xxxi–xxxvii) that are not of specific interest here. More
importantly, I want to highlight the essential idea that Rusche and Kirch-
heimer found in early utopianism, in More to be exact, who said that
society produces thieves in order to punish them (Rusche and Kirchheim-
er 2003, 22). It is the key to interpret this hypothesis, and the ideas that
make of the status of the working and oppressed classes and their eco-
nomic situation and penal system the adjacent vessels of stick and carrot
that go together, grow and diminish depending on the economic pulse.
Punishment and labor are an interdependable stick and carrot for the
proletariat, the moving forces of the political economy of punishment.
This may be the hidden essence, and the forms change with the contin-
gencies of history, such as the discovery of new continents for exploita-
tion or the invention of electronic bracelets.
Less platonically: even if this law’s tying of punishment with the econ-
omy of labor is constrained by qualitative Durkheim’s law in the longer
cycle, the point is that prison is a bit of an empty word or a “floating
signifier” allowing for wide differences in its concrete form and function.
In prison one can perform the labors of Sisyphus, literally rot in a worldly
hell, or enjoy the relatively favorable conditions of working for a wage.
As Rusche and Kirchheimer describe, mercantilism gave rise to the in-
dustrious activities of the incarcerated, while the big reserve proletariat
armies in the aftermath of the industrial revolution when machines were
taking jobs went along with the fear of the dangerous classes with pre-
dictable penal consequences. The penal policy became harsher. The dis-
course is convincing but I end on a more problematic note. Beyond the
142 Chapter 2

considerable space left for the operationalization of the variables of pun-

ishment/imprisonment and labor, the devil resides in the desire for the
exact causal mechanisms that should go beyond the vague trope of basis
and superstructure and the dialectics of economy and repression (see
Foucault 2012b, 12). 15
It could, for example, be scarcity pumping up the value of surplus
labor or reducing it, according to a simple economic law, and prison
following this; in a vicious circle, the same laws of value incite to crime
that pays more than work in such circumstances. Or it could be the dis-
course of fear of the dangerous classes, consciously building up repres-
sion by state penal apparatus, followed by laws and their application,
and so on. In any case, or all of them, the penal population in the United
States, prima facie overblown beyond any economy, seemed to be a hard
nut to crack for this discourse but it is not insurmountable, at least with
the long-term development qualification and probably with some gim-
micks of class analysis. Facile refutations may not trump the reasonable
idea, erasing it from the world of plausible theories communicating with
each other. If one does not believe too much, along with Hugo and the
American idealists, in the power of the ideas, the answer could lie in the
institutional inertia and some autonomy of superstructure that takes time
to heat up and to cool down in a rhythm that does not necessarily follow
that of the economy. It is what the historical variety of the new institu-
tionalism in political science calls path dependency, adding many other
useful bits of vocabulary to describe institutional changes affecting poli-
cies such as critical junctures, drifts, conversions, and exhaustions. That
said, we should move to affects that, according to some, affect the history
of punishment.

ELIAS: THE CONTROL OF AFFECTS AND THE CIVILIZATION OF

PUNISHMENT

In a seminar in Dubrovnik I met a Danish group analyst and theorist of

architecture who was a close collaborator of Norbert Elias after he met
him in the late 1970s; Søren was Elias’s pupil and a person cherishing his
influence. Beyond seeking revolution in the sometimes disappointingly
conservative younger generations, at least to the older incurable ’68ers,
and probably unsuccessfully trying to make me move out of dogmatic
slumber of the forest of references to some genuinely fresh thoughts, his
several points (Nagbøl 2012, 103, 106), which are important to under-
stand “Norbert Elias’s extensive authorship, which in many ways is sur-
prising and innovative,” are the following: Elias’s sociology was “pro-
cess-oriented,” directed against “universalist systems, which in his hon-
est opinion led to abstract speculations and a static view of humanity”;
not only does this, according to Elias, lead to fruitless “abstractions” and
 A History of Violence 143

analysts as “thinking statues . . . blind to reality,” but humanity, a moving

target, shifts the individual ontology toward collective figurations: “The
person is a process where the sensuous life contexts and practices are
supported by matrices, more or less flexible action drafts, which are also
rooted as social figures in the biological-physiological process.” 16 In other
words, Elias’s teaching is so far from the Parsonsian visualizing of a
national community as a functional social mechanism, which becomes
static and short-sighted, as it is distanced from political liberalism’s indi-
vidualization of subjects as a naïve superstructure of the day. Elias stud-
ied formations of human collectives through time and called the process-
es of their formation sociogenesis and psychogenesis, the processes through
which the character of groups—such is his ontology—was formed. The
changing historical character of the aristocracy and other classes, of na-
tions as in his studies of the Germans (über die Deutschen), emerge in these
analyses (Elias 1996), and time becomes a crucial concept in sociology,
neglected in short-sighted accounts of society.
Elias’s key theoretical contribution to the social sciences, which be-
came influential after its reissuing in the late 1960s, was The Civilizing
Process, a study that I luckily became familiar with as an undergraduate
student in a course called Theories of Social Development. It is a book that
puts violence into a perspective of transnational societal development
through the ages, a work that is interpretatively ambitious and a show-
case of sociological imagination, building arguments on the basis of vari-
ous sources typical for the writing of cultural history, such as works of art
or le bon ton manuals. It served as a basis for studies of violence and
punishment, and a big influence on the bestseller by Harvard professor
Steven Pinker in his popular study with a Lincolnian title. I first present
Elias’s ideas relevant for our subject and then, in the next section, I focus
on Pinker’s argument and offer a reading of his ideas on violence and
punishment. Elias’s problem is both simple and intriguing, and under-
standable for one who lived through the Second World War, unlike his
parents: “What sort of process was it that had led to the fact that the
brutality was accompanied by a guilty conscience? In earlier historical
periods, populations had been annihilated, completely naturally, without
the action being accompanied by a feeling of guilt, distaste” (Nagbøl
2012, 103).
Elias discusses the mentioned processes of psychogenesis and soci-
ogenesis intertwined with European economic and political history, espe-
cially the establishment of modern states claiming the monopoly on vio-
lence (see Dunning and Mennell 1998, 355) in the context of the develop-
ment of a capitalist economy. These are the processes of the formation of
collective character and habiti as the embodied psychological disposi-
tions—not the Cartesian idealistic egos, but bundles of emotions, cogni-
tive sets, reactions, and habits of the body, that is, the “second natures” of
molded affects and altered drive economies—of individuals formed in
144 Chapter 2

the course of the social interactions in an interdependent society. Bonds

between the social and the individual are unbreakable; the individual is a
part of societal affective whole, the collective that cannot be sharply de-
lineated from the individual (something explored and a bit depsycholo-
gized in Bourdieu’s sociology developing the concept of habitus as prac-
tical disposition to act in a social field). This comes out as a lesson from
history excavating another human, understanding that we are beings
who gradually changed through the ages in our manners and behavior.
From the ninth to the twentieth century, the early medieval times to the
modern age, bodily functions, table manners, spitting, and even farting
habits (euphemistically diminished, for example, as “winds”—vjetrovi—
in Croatian) changed: what was once normal generally became vulgar,
suppressed, and constrained. With the density of social interaction grew
the control of affects and, interesting for us, restriction of violence, which
became odious and provoked repulsion. Instincts and impulses were af-
fected, shaped, and changed by the social processes. Even romantic love
is something that appeared from constraint, in association with the
Minnesinger and court poets. Existential angst of death in a violent soci-
ety was replaced by more bodily security and the civilized homo clausus in
fear of the breach of the norm, a well-trained animal. The retreat of cruel-
ty and violence offers the link to theories of historical change of punish-
ment.
Cruelty seemed to be as tolerated as dog bashing, which still appears
in more primitive local niches of today’s culture. Elias gives an example
of a violent knight and his equally callous bloodthirsty wife that seems a
piece of clerical propaganda and exaggeration, especially without reflec-
tion on this possibility, but that can, however, still probably serve as an
illustrative anecdote, as the burning of cats on some occasions of royally
sponsored public feasts in France to the delight of the crowd and prob-
ably the royal person of Charles IX, who on one occasion to such “festive
pleasures of Midsummer Day” of caterwauling pyres added “the special
request” that was fulfilled to the expense of a certain poor fox that was
“caught and burned as well” (Elias 2000, 171). More generally, cruelty
was tolerated, a source of pleasure that did not bring social exclusion in
form of ostracism or penal sanction. Although “Elias himself said next to
nothing about punishment” (Pratt 2000a, 186), his narrative provides the
important context for punishment, which follows the same logic of re-
straint as violence. Punishment has to be civilized. It cannot afford to be
cruel. As warring classes and the feudal lords waving their swords be-
came tame with courtesies and the civilité of the high courts, and com-
merce in the cities became dense, to punish by performing torture on the
scaffold became a problem. Let’s take a bit more precise look at discourse
on violence and punishment that can be derived from Elias.
Unlike Foucault who, as we shall see, speaks in the language of tech-
nologies, discourses, and tactics, Elias writes combining categories of
 A History of Violence 145

economy and politics with collective psychology and Freudian psycho-

analysis. If the first approach to punishment is describable by the me-
chanistic metaphor of apparatuses and forces, the second one is about
fluids that change their aggregate states and temperature—Elias himself
uses this metaphor to highlight the mélange of societal and individual.
These are the nonrational elements of punitive mentalities that shape
punishment in a story about punishment that, following changed mental-
ities itself becomes civilized, less centered on physical pain and bodily
violence, more delicate and secretive (Garland 1986, 316, 318).
The first point, then, in an attempt to derive a paradigm for the inter-
pretation of historical change in punishment from Elias is that besides
economy, various technologies and other factors that shape punishment
in time, there are “cultural qualities” that “also set limits on how it is
possible to punish at any given time” (Pratt 2000a, 184). Although it was
noticed that the concept tends to be obfuscating and even dangerous, and
I’ll play a bit with that idea in the next chapter, culture seems to matter in
punishment. The way to do things, how to behave, inculcated meanings,
do’s and don’ts, dominant blueprints for life, ideas and values, and so
on—to get lost in the thicket of general and vague definitions mockingly
listed by Geertz, who settled for the spun webs of meaning, playing on
the card of semantic versus ontological; this is culture, in a word, if oper-
ationalized in a manageable way, let’s say with the aid of the mentioned
concept of punitive mentalities and Eliasian categories, may have a say.
Sentiments of the population or at least of the punishing class, and the
civilized communis opinio, set the limits for punishment: we are not inhib-
ited, so we simply lynch in an outburst of emotions as hinted in the
introduction. Or we are civilized and we don’t do this or that. Torturing
the torturer or raping the rapist may be a retributive practice in hidden
chambers of prisons and torture grounds, but this will mostly be out of
bounds as practice that would be visible or publicly legitimate.
Grounded in simple tautological sentiments expressed as “we are civil-
ized,” the position echoes the limits of Murphy’s retributivism recalling
Kant’s and Nietzsche’s aphorisms—working, of course, on a ceteris pari-
bus level, which is explained in the following paragraphs.
Second, Elias’s thesis goes pretty wide when punishment is con-
cerned. For example, various phenomena from prison architecture and
bureaucratization of punishment to “sanitization of penal language”
(Pratt 2000a, 194–95) can be read as variables within the civilizing pro-
cess. It all works to hide, to distance, to control sometimes destructive
affects. But the methodological point beyond a possible narrower norma-
tive reading is perhaps to theoretically connect the punitive mood, a
sadistic impulse to crush the perpetrator, especially a proverbial sexual
predator, with a punitive practice, be it vigilantism as informal punish-
ment, a way to protect (the perception of the right and just) order by self-
organized subjects, bureaucratic procedure in a society where subjects
146 Chapter 2

live their lives in a civilized routine, or any channels whatsoever that

enable punitive mood to be “translated into action, rather than simply
left at the level of ‘talk’” (Pratt 2000b, 419). History of punishment is to
seek such channels.
Third, a fluid relational dynamic is expressed in Elias’s conceptual
metaphor of figuration that, unlike reifying structure or somewhat crys-
tallizing “constellation,” refers to the dynamic power relations in a soci-
etal formation, especially between the established insiders and the out-
siders. Punishment is certainly part of this. The secondary metaphor to
explain the mobile interdependency conveyed by the primary one is
dance: changing tempo and dynamic performance depends on individu-
als who do not define the activity itself, however. Punishment as dance?
A danse macabre perhaps, but to connect it to the former point, it often
demands a dance floor, an orchestra, a conductor, and so on—infrastruc-
ture, in other words, if we do not talk of spontaneous small gigs of retrib-
utive violence. This discourse is best combined with the other ones, as
Elias did himself, after all: organization, economy, and politics, with fig-
urations, habiti, and penal culture. This sounds like quite a general equa-
tion about violence and punishment: constraint of interdependency and
dynamic of its breaching in a political, social, economic, and technologi-
cal context. History sets it to motion.
Finally, the civilizing process and its impact on punishment are not
all-encompassing and homogeneous. The civilizing process is reversible,
as history seems to be sometimes. It is “a process without a definitive
starting point and a process without a definitive end” (Pratt 2000a, 191).
Some are conditioned, some are not, depending heavily on the economy
of exchange. It works in long-term analyses but, depending on contextual
accommodation, it can be applied in shorter spans, like a Foucauldian
framework, contrary to some more constrained approaches to this matter.
For example, one can use it historically like Spierenburg did to interpret
the waning and disappearance of “the spectacle of suffering” (Spieren-
burg 1984). Or one can use this discourse to interpret contemporary
changes whether within the linearity of this process or against it, by
postulating decivilization triggered “by phenomena such as war, catas-
trophe, dramatic social change and the like” (Pratt 2000b, 421). One of the
other possibilities is to focus on the work of the “local centrifugal forces,”
leading to “vigilantism and lynching,” where emotions like fear and an-
ger are more easily channeled into punishment, often with the help of
local populists, and one example is the American South (Pratt 2000b,
429–30). However, studying changes in punishment in Croatia during
and after the war, I may imagine a combination of the listed elements; as I
explain in a mini case study in the next chapter, a form of power impacts
practices of punishment; it creates and legitimizes informal ones, asso-
ciated with the friend/enemy relations, punishing the undesirable sub-
jects through ancient methods aside from the formal penal bureaucracy,
 A History of Violence 147

which still keeps the track of more or less civilized punishment running.
It is history, catastrophe and the present in the local niches of the periph-
ery guided by general political discourse. A small-scale decivilization
backed by the horror of a war’s body count is emotional fuel for changed
practices of punishment.
And if one does not want to think locally in terms of wars in the
former Yugoslavia or Ukraine, or peculiar (historical) places such as the
American South, one can associate possible changes in discourses on
punishment in the direction of more emotional and ostentatious out-
bursts of shaming and scapegoating with various more general shifts in
political climate or the societal sphere, be it the changing cultural land-
scape or new technologies. Arendtian or even Houellebecquian theme of
the demise and dissolution of authority pairs well with emotions escap-
ing meticulous habituation and discipline. Alienation and feeling of inse-
curity in the global world, which becomes a place of fear as on Elias’s
premodern roads where a traveler’s pulse quickens as they are afraid of
the ambushing bandits? Or is it the Internet and omnipresent social net-
works and virtual commenting that without face-to-face interaction and
relative anonymity of participation cause a maelstrom (or “shitstorm,” if
Schwarzeneggerian Austrian English in the role of the Terminator is al-
lowed anywhere near the academic discourse) of insults, threats, and
curses that hit certain persons deemed guilty, bombarding and skewer-
ing an unlucky individual with abusive scatological, sexual, racist, and
other language of the modern age, emotionalized digital pillories? Is this
only a farcical safety valve for emotional expressivity in light of omni-
present discipline? Possible various forms of decivilization and the
modes of unleashing of affects seem to be good grounds for radical skep-
tics, and probing along the line of the suggested questions, challenging
the modern paradigm of punishment as a distanced rational sanction that
developed in the course of history. Many “whys” have many “thuses,”
however, also leaving space for some unsettling Habermasian questions
of normative foundations: Do the followers of Elias want more or fewer
emotions? Which ones—fine-grained “civilized” emotions of court in-
trigues, or sword cuts and hacks of the brave and the explosive? And
what is the price, in violence and punishment, or elsewhere?
To conclude this section, there is perhaps the cunning of historical
reason—unstoppable Hegelianism as l’universelle aragne, the universal
spider, the flattering epithet of Louis le rusé, one of the fifteenth-century
sovereigns of France—in using this framework that, after all, seems to
positively value rational action. I don’t know if it is normatively right to
be normative—to wit: not to be normative is, in fact, impossible, even if
normatively desirable—but the position of this discourse is normative in
a sense that it will, willy-nilly, negatively assess more emotional and
brutal punitive practices framing them as an outcome of the decivilizing
process. Who wants to be uncivilized, that is, barbaric? This, of course,
148 Chapter 2

does not make civilization good per se; its bureaucratization, distancing,
and closing is something that strains and puts pressure on the human
psyche, as noticed by Elias. The meaning of the theory is not to affirm a
bon ton of the French court. It is the iron cage of bureaucracy (enabling
even the Holocaust), or at least of academic discourse production that
often works as a “civilizing” or ideological force—like American liberals
of one or another kind, academia leans to the Left, countering populism
that is ideologically spaced on the Right, concerning punishment, at least.
Is there a way out and what should punishment be like? It is the question
this kind of treatise shouldn’t dare to answer explicitly.
It is easiest for me to convey an idea by referring to something I am
acquainted with better. Foucault, then, might be read as an author of the
dialectic of enlightenment, at least up to a certain point when he reaf-
firmed Kant’s essay on enlightenment and affirmed philosophy as a
mode of reflection on the contemporary problems, not as a genre of per-
ennial abstraction but something that has to do with the “historical ontol-
ogy of ourselves” (Foucault 2008). Foucault also acknowledged a similar-
ity between his concerns and those of the Frankfurt School and one might
say that his monumental study Discipline and Punish in terms of ideas
coincided with one of Adorno’s fragments we have already mentioned in
the context of the sketch about the history of prison: “The human being in
jail is the virtual image of the bourgeois type he has yet to make himself
in reality” (Horkheimer and Adorno 2002, 188). “We are all imprisoned”
is the claim of the cultural critique. It is similar with Elias. 17 He even sees
the Holocaust as a result of the civilizing process, especially in the context
of the historical development of one, in Plessner’s words, verspätete Na-
tion, a belated nation (Elias 1996; see also Dunning and Mennell 1998). A
mass-scale technical execution involving massive logistics of deportation,
a candidate for the biggest punishment in history, albeit all the controver-
sies, questionings, and revisionisms, is (of course) a thing of collective
hate, but its execution is perhaps as associated with the lack of any senti-
ment as with the excess of sentiment. It is an act involving a large bureau-
cracy of punishment demonstrating the irrationality of rationality; if this
is playing with words, it is congruent with the argumentative style of the
dialectics of enlightenment, which points to the replacement of the old
myths with another set of myths attacking human freedom. Hate of the
outsiders together with bureaucratic efficiency is the recipe, with Eich-
mann-like managerialism as fictionalized by Littell and recounted in the
last chapter. Or, on a lesser scale, one may think of Cohen’s punitive city,
the continuation of punishment and discipline by other means outside of
prison, following suggestion from the end of Discipline and Punish. Did
punishment become a thing that has to do with a paradoxical combina-
tion of estrangement and emotions, which is again an Eliasian theme?
Ideology of discipline in the community, following the Enlightenment’s
model of the punitive city, with the theatrical role of the disciplines such
 A History of Violence 149

as medicine, psychology, social pedagogy, and social work doing the

social control throughout our society (Cohen 1979, 360)? Instead of the
spectacle of suffering, the spectacle of homo clausus theatrically tamed
further in the community? Elias provides tools for probing that are useful
both in history and the present.
After all, perhaps a genuine Eliasian answer, maybe against the au-
thor himself, would go against any idealistic proclamations that might be
given as an answer to some of the posed questions about teleology and
normativity of this discourse. The civilizing process brings a strange par-
adox to light. It is an empirical history of violence correlative with Whig
history of punishment, (not) seeing that violent dreams of today are but a
reflection of closed human, dreams that could not be formed before the
closing. It is, in other words, a genealogy of the Western soul shaped
through taming, discipline, and punishment that sometimes feels uneasy
in the cage it has built and seeks both destructive and creative ways to
open it.

PINKER: DARK ANGELS OF VIOLENCE AND PUNISHMENT

Steven Pinker, psychologist and “cognitive scientist,” wrote a bestseller,

The Better Angels of Our Nature, subtitled Why Violence Has Declined (Pink-
er 2011b), that interpolated Elias as an important part of a historical,
statistically backed argument on the historical decline of violence. Pinker
is writing in “an age of psychology” (Pinker 2011b, 569) that takes care of
the pain of the victims, which is different from the historical ages more
insensitive to violence. His question is “Why is there peace?” in the histo-
ry of violence.
Pinker is against “metaphorically extending” the concept of violence,
which brings him close to this treatise. To be sure, he is not negating all
the problems caught under the term, which are violence but of different
sorts, causes, and consequences (Pinker n.d.). Roughly speaking, he is
interested in the bashing of heads, killings, and so on, in the cases when
the victims are humans and not, for example, chickens on a poultry farm.
Pinker is to be sure not a Hegelian, if the term is taken in the sense of
prophesying the end of history (à la Fukuyama in the early 1990s); he just
eclectically combines various trends and phenomena to argue that there
was relatively more bashing long ago—from the cited violence marks of
the fossils and bones of our ancestors, through the Middle Ages to the
present. As history progresses, in association with some processes and
developments, the better “angels” prevail over the “demons” and there is
lesser violence in society. We, the Westerners of history, are today more
civilized and thus more sensible to lesser amounts of violence, so we
often tend to exaggerate when we speak about its contemporary magni-
tude. It is, in fact, an Eliasian story. Elias figures as the key thinker of the
150 Chapter 2

book, “the most important thinker you have never heard of” (Pinker
2011b, 59), unlike Foucault, whom I juxtaposed with Elias in the previous
section but who is almost written out of existence in the text of Pinker’s
book. 18
In recounting Pinker’s argument, it is perhaps best to start from the
titular metaphor that kind of says it all. Violence, or the human propen-
sity for it, has not disappeared. For Pinker, human nature has not
changed fundamentally. There are passages in Elias’s magnum opus
speaking about the strains of socialization on children: the violent im-
pulses are still there before civilizing it into a second nature in the process
of socialization and habitus building that in the course of early individual
histories follows the long and dynamic historical paths of sociogenesis
and psychogenesis, sometimes at a frustratingly quicker pace. Pinker fol-
lows this line of thought. Human nature is still there but it is not only
violent: it seems to be like in Zimbardo, neither good nor bad. As Lincoln
said, there are “better angels of our nature,” which does not eliminate the
bad ones, which are still here and might reactivate if circumstances allow
it. This is again close to Eliasian interpretations of violent regressions.
And it is also a key to interpret violence and, secondarily, punishment.
The better angels got their chance together with some political and cultu-
ral processes discussed in the book, reducing violence and changing pun-
ishment, although far from eliminating the need for it, in Pinker’s more
normative moments.
Contra leftist anthropology that “celebrates the noble savage”—which
probably makes Rousseau a political “leftie”—Pinker, as Schmitt does,
adheres to Hobbes. Various research efforts that “quantify the historical
ebb and flow of violence,” such as those of the criminologists like Manuel
Eisner, show that murder rates were much higher once in Western Eu-
rope; for example, about two dozen Englishmen were killed per year per
100,000 inhabitants in the late Middle Ages, compared to less than one
these days for the United Kingdom. This is the key measure, a crown
evidence of Pinker’s argument: historically descending peacetime mur-
der rates, echoing a theoretical claim by Giddens, who agreed that, in
contrast to the blessed late modernity with the ontological (in)security of
expert systems and fluid relationships, there were times of real physical
insecurity, when life was indeed dangerous, brutish, and short. This is
the exact thesis of Pinker’s shorter piece published in the New Republic,
preceding the study, with the clichéd name of this chapter as well as the
movie starring Viggo Mortensen where the criminal record of the protag-
onist’s past emerges as the plot develops. In A History of Violence, Pinker
is Hobbesian to the bone: “The first is that Hobbes got it right. Life in a
state of nature is nasty, brutish, and short, not because of a primal thirst
for blood but because of the inescapable logic of anarchy” (Pinker 2007).
The point is that a firm order and other factors contribute to the diminish-
ing of violence as an evolutional force, while violence breeds in zones of
 A History of Violence 151

anarchy. Pinker would probably put our new caliphate somewhere there,
as violence taking its chances in an anarchic setting, while ruminations
about its structural causes are easily provided on the Left when they
discuss orientalism, resource exploitation, and some other things that set
the riverbed for the violent stream.
Although “in the decade of Darfur and Iraq, and shortly after the
century of Stalin, Hitler, and Mao, the claim that violence has been dimin-
ishing may seem somewhere between hallucinatory and ‘obscene’”
(Pinker 2007), Pinker’s approach is to put violence into a relative perspec-
tive: how much of the population is killed and how high is the risk of
living based on quantitative data, not on contemporary impressions? For
example, millions died in the Napoleonic wars and 650,000 died in the
American Civil War. Genocide is a new term denoting an ultimate hor-
ror, but the practice was old, as Elias knew. It comprises Rome’s treat-
ment of Carthage, expressed in repetitive speeches of Cato the Elder
(Carthaginem delendam esse) whose demand was literally fulfilled; the
carnages of Mongolian hordes, crusades, American colonization that de-
stroyed the natives, who could only throw sinks in acts of ludic anger in
the aftermath, at least in the products of popular culture such as One Flew
Over the Cuckoo’s Nest with gigantic and silent Chief Bromden as one of
the poignant characters. The point is that genocide is something we,
Western civilization cherishing the Enlightenment, began caring about
relatively recently, and then it became a problem, like crimes against
humanity, relatively recently in history. However, unlike Elias, who was
primarily a sociologist and not a neuroscientist, the ontology of discourse
is different in Pinker, or his discourse has other places where it stores its
causes or their correlative facts: the prefrontal cortex where these nonvio-
lent thoughts and actions are neurologically located.
Pinker’s story is in that sense the following. There is aggression but
from the interdisciplinary perspective and neuroscience he is competent
in, it is a compound beast that has to do with biology as well as the
natural and social environments. Not all impulses realize themselves.
The ontology is mixed. 19 Violence can be a simple means to an end, an
urge for power (i.e., individual or group dominance, a long-term invest-
ment of the alpha males or groups working together for the exploitation
profits), or revenge as “the moralistic urge toward retribution, punish-
ment, and justice,” which sounds like a nice mix from the perspective of
this book. And, of course, there is sadism as pathology and ideological
visions of utopias that usually justify present violence for a better future
(one might think of Lenin and Stalin’s policies during the “historically
necessary” phases of dictatorship of the proletariat, for example, in Mar-
cuse’s interpretation offered in Soviet Marxism). Pinker calls it a utopian
cost-benefit analysis: all means are allowed if the ends are infinitely good
and beneficial. And as is known, some claim they have found such ends,
which legitimates violent and destructive means, as evoked by the clas-
152 Chapter 2

sics of dystopian literature, such as Orwell’s 1984 and Koestler’s At Noon

where the party kills and tortures or brainwashes with propaganda in the
name of the historical truth it has found at the expense of individual
truths and perceptions that have become aberrations from the right
course of history.
There are six trends that Pinker tries to combine in an explanation of
curbing the earlier described bad guys, the dark angels of violence. It is
the expansion of empathy, perhaps considered as the best angel of our
nature, an evolutionary gift that gets socially broadened by various
trends. Hunting and gathering was associated with anarchy in Pinker’s
discourse; it is a world of wild justice (and horizontal punishment, we
might add). The start of the pacification process has sedentary horticultu-
ral societies as its presupposition. A decline of homicide rates is a part of
European state building and the civilizing process as described by Elias,
together with blissful commerce against feudal violence and exploitation.
It is one of the cornerstones of Pinker’s argument. To this pot-au-feu, a
reader of Pinker must add further four elements: the humanitarian revo-
lution, the long peace, the new peace, and the rights revolutions. Enlight-
enment worked against torture and the witch hunts, and after the two
world wars, the Great Powers arrived at relative peace; after the crumble
of the prolonged cold war balance and the global fall of communism (or
at least its fall in the Soviet bloc and Eastern Europe), conflicts have
declined, Pinker claimed back in early 2010, later confirming the extrapo-
lated trends, “except the effects of the war in Syria” (Pinker 2014). Finally,
rights revolutions amount to Keane’s democratization of violence—that
is, its reduction following its publicizing and regulation; the unseen and
the excluded become seen and included, be they women, children, ethnic
or sexual minorities, or animals. As the new discourses define victims
and perpetrators, cruelty and violence became a problem to be tenden-
tially curbed by public intervention.
Perhaps surprisingly, the implications of this position for punishment
are close to the positions of American conservatism. Pinker seems to
really dislike the hippies and the spirit of ’68: he demands order against
the “bleeding heart liberalism,” as evoked by Newt Gingrich, and is not
far from the criminology of James Q. Wilson, seeing incapacitation and
zero tolerance as efficient means against laxity of policies and exegeses of
causes. Pinker mainly treats punishment within his narrative of the hu-
manitarian revolution. When speaking of prison (Pinker 2011b, 121–23),
Pinker accepts some forms of punishment as recivilization. He does not
see prison as a big humanitarian drama; he is not so far from the conser-
vative adage “If you do the crime, then you do the time”: “Unlike the
more gimmicky theories of crime decline, massive imprisonment is al-
most certain to lower crime rates because the mechanism by which it
operates has so few moving parts” (Pinker 2011b, 122). Pinker simply
accepts incapacitation—most violent subjects end up behind bars “for
 A History of Violence 153

longer stretches of time” (Pinker 2011b, 121), which puts them out of the
game—even if he is less sure about deterrence, that is, the effect of pun-
ishment on the general population. Police work and the “broken win-
dows” theory are also acceptable, as they are for the Wilsonian rational
actor school of criminology that seconded the Reagan-era tough-on-crime
policies flagshipped by the war-on-drugs juggernaut. This is, at least, one
of the penal policy suggestions that can be inferred from rational choice
criminological discourse portrayed in the penultimate chapter, about the
science of crime.
However, Pinker’s concept of punishment is somewhat broader, as his
discourse against the death penalty exemplifies, which could be put with-
in the abolitionist section in the former chapter, and he at least theoreti-
cally accepts deterrence: “The whole point of punishing someone is to
make him so unhappy that he and others won’t be tempted to engage in
the prohibited activity” (Pinker 2011b, 144–45). As is physical violence in
general, capital punishment is in historical decline, especially its brutal
methods such as quartering, navy keelhauling, or bones being broken on
the wheel (Pinker 2011b, 147), as in the beginning of this chapter. The
historical decline of such punishments is also a part of the exhaustive
history of violence: “It is one of many cases in which institutionalized
violence was once seen as indispensable to the functioning of society, yet
once it was abolished, the society managed to get along perfectly well
without it” (Pinker 2011b, 153). In other words, John Stuart Mill was a
victim of the superstitions of his time.
In conclusion, I try to assess this discourse—although it is not an easy
thing to do. One can be understandably irritated by its peripheral aspects
and not be especially delighted with Pinker’s tone of ideological rightful-
ness, impoverished of any irony, but his interdisciplinary approach to the
history of violence is clearly formulated, interesting and analytically
fruitful. It offers a discourse worth probing, building an argument from
wide evidence ranging from the battered skeletons to the reading of fic-
tion and newspapers. It provides an impressive compilation of data and
ideas on the important problem. Ideologically, it is also a National Lam-
poon love story with secular enlightenment, not accepting its dialectics,
expectedly provoking often well-placed criticism by various conserva-
tives, theologians, and vigilant critics of Enlightenment, such as John
Gray. Although in this type of ironical eclectic discourse (analysis), it
might not be the best thing to do, it might still be not too (self-)defeating
to say: even if the main point seems firm and the data plausible, the
argument might not be valid all the way since there is a general problem
in the shallow patchwork of descriptive bits brought together without
deeper coherence. The modest confession is in the right place, admitting
that it does not predict that better angels will prevail. The trends are
there, but are they really there because of the stated patchwork of forces
and reasons? How deep and lasting will they be? It is hard to say, but
154 Chapter 2

Pinker is certainly firm in his normative convictions that form a reason-

ably coherent worldview.
Pinker’s normative motto is that we should be grateful to “the forces
of civilization and enlightenment” and cherish them (Pinker 2011b, 696).
Enlightenment is a force that brought longevity, health, education, and
less superstition leading to violence. Politically, it is liberalism and a
certain form of constitutional democracy against tribalism and religious
bigotry. Societally, it is less crime and more cooperation for all. All the
parties are better off, or at least those that do not have warrior inclina-
tions and, to wit, accept a petty bourgeois logic of life. A moral sense
transcending the particular closed community, fairness and universality
(although it is arguably secularized puritanism which forgot its roots),
and detached analysis is opposed to parochialism and to all forms of bad
social capital explored by Banfield (1958) and caught by the syntagma of
amoral familism that puts the family, or tribe or nation, on a higher scale
hardly anywhere transcended (“my nation, right or wrong)” above uni-
versality as a vehicle for solving conflicts. Economically, it is the histori-
cal veneration of gentle commerce that curbs violence with references to
Montesquieu, Kant, and Smith. Trade is a positive-sum transaction in
which both parties gain—if you don’t get cheated by marketing propa-
ganda or other Pavlovian means to induce saliva, fatten the nation, and
endanger public health, to mention only some aberrations from the ideal
form. At least is not a blatant zero-sum game, like looting or warring
violence. Although Kant did acknowledge war, and his Eternal Peace has
many layers—beginning with the ironical remark that it is the name of
the pub near the graveyard, Zum Ewigen Frieden—the problem might be
that trade is as old as war, and they coexist to this day, one or the other
taking primacy depending on the situation. Schmitt cried about the de-
cline of the warrior people but Pinker’s exultations have a sound that is
equally shaky.
There is one more problem worth mentioning when we are address-
ing normative layer of this discourse on violence and punishment, or
more exactly, a discourse against violence and perhaps for some forms of
punishment. Pinker indeed has a “utilitarian rationalist Occidental sub-
ject lacking self-reflection” touch that acknowledges the facts of violence
done in the process of colonization, to add “but” after that, which works
normatively to minimize the violence done to the Other. 20 Individuals
and groups seem expandable in the course of history, in a Hegelian main-
line present even in Marx who, arguing against capitalism, also affirmed
it in historical perspective, for example, giving it due for lifting the peas-
ants out of the idiocy of their rural life (Idiotismus des Landlebens), as the
famous phrase from the Manifesto cowritten with Engels goes. Pinker’s
discourse offers the following similar valuation: in the mill of (natural)
history, violence is allowed for the sake of a decline of violence, at least
within the well-ordered states. It is the historical utilitarianism of vio-
 A History of Violence 155

lence, and I am not sure if it is a thing that can be associated with Enlight-
enment, education, and reason replacing violent conflict. Some better an-
gels seem to have a dark side worth exploring when one is probing the
extremes.
The banal phrase of “time will tell” makes sense in a chapter on histo-
ry, especially when one is still not ready, or within this framework of
exposition lacks space, to replace an uneasy feeling with a precise refuta-
tion. Aggregate data may change according to some other angels and
demons. Perhaps they are already changing—terrorist attacks, the Mid-
dle East wars, and violence associated with migrations included. The
individual human hand is not the only agent of violence, and contingen-
cies of history are hard to foresee, as Pinker acknowledges. The alterna-
tive to historical narratives of linear progress are grim. Among them
stands the ancient theory of cycles, pessimistic and metaphysical. Danilo
Kiš—“a monster of magnitude” to apply to himself his wonderfully am-
bivalent characterization of Krleža—or in any case a great writer of Ser-
bian language, expressed this in an interview. 21 Kiš replaces Pinker’s
utopian belief backed by statistics with the more somber tones rendered
in the discourse of the treacherous common sense, suggesting a counter-
balance to the optimism of the civilizing process and the Whig history of
violence before concluding the chapter:
All those conflicts in our epoch are not at all different from the wars in
Antiquity or in the Middle Ages. Perhaps the classic wars were less
horrifying, because human beings did not have the destructive means
that are usual today. We would have to be very naïve to believe that
the modern man is different, more developed. I am, principally, con-
vinced that history is realized as a history of misfortune, that it repeats
itself always in its bad aspects. (Kiš 2015)

CONCLUSION AND THE CAMP: THE POLITICS OF ETERNAL

RETURN?

While writing this book in Šibenik during the academic summer break of
2015, I visited a small exhibition of premodern torture devices from
across Europe, from medieval times up to the eighteenth century. There
were several dozen authentic exhibits encouraging us to try to feel and
touch the pain, located in in two rooms of ancient architecture in the old
city engineered by the Venetian Republic, as an eclectic, all-round Came-
ra del Tormento from the Palazzo Ducale, the monumental Doge’s Palace
across the Adriatic. Although only a small hint of innumerous injustices
from our “civilized” point of view could be felt—these pains seem to be
absent and forgotten from our world, probably depending on the emo-
tionality and the mood for cathexis of the observing subject—the me-
chanics of torture were clear, bringing Kafka’s colony machine back to
156 Chapter 2

historical reality. It was a small chamber of historical extremes, a journey

down the rabbit hole to the extreme history of violence and punishment.
General principles, corresponding to the cited belated historical text-
books cataloguing formalities of torture that were already in the process
of historical decline, were to crush the body following its anatomy, pair-
ing this with pain and destruction, descending from the abstract catego-
ries to the concrete operational methods and mechanical gadgets that
often symbolically connect to the crime, such as the noisemaker’s fife that
pressed and shamed the gagged garrulous and querulous, or simply too
talkative, and also bad musicians, similarly to the village bard Cacofonix
whose mouth is regularly gagged as he is tied to the tree, so that he
cannot interfere with the harmonious ending banquets of the episodes of
the Asterix comic books.
To press, to cut, to break, to burn, to fill, to empty, to cramp, to tether,
to shame. Sometimes these are dosed procedural means employed by the
Inquisition that precede the infliction of death, sometimes directly lead-
ing to the final punishment. From the outside or through the inside. It
could be cutting with axes and sabers or pinching body parts with heated
pincers; spiking the body with many small needles in iron maidens
spiked inside sarcophagi or on witch stools, or penetrating it with one big
spike in Dracula-style impalement, breaking the body on wheel, crushing
or pressing it with weight, hanging or stretching it, breaking it from
inside with mechanical gears or pyramids that widen, rupture, and blow
its cavities, mouths, vaginas, and anuses or from the outside with me-
chanical feet-, finger-, knee-, and head-crushers. Or clogging or gagging
the body as with preventive but torturous chastity belts, introducing nee-
dles when necessary, that shut one’s heretic mouth while piking the
tongue through the chin before burning the whole body on a stake, as
happened in 1600 on the Campo de’ Fiori to Giordano Bruno as he was
transferred from the Venetian to the Roman Inquisition, an unfortunate
Dominican friar who disputed geocentrism and advocated cosmic plural-
ism. The exhibition also showed a historical method that preceded water-
boarding: torture with elements alongside fire included water, with the
idea of filling the body until it breaks or suffocates. There were both
ergonomic and nonergonomic irons tethering the body, such as upside-
down thrones, stocks and pillories, Alsatian feet and crosses, of which
more or less only simple handcuffs survived today. Big metal masks
resembling pigs were still in the register of body-pressing iron, but the
moral cloaks of shame were nothing like stigmatizing brands marking
the body, fried and cut on by the sovereign. It was all part of the complex
protocol of auto-da-fé, public repentance and punishment fictionally ex-
emplified by the mentioned walk of shame by Cersei Lannister. And the
culmination perhaps, a perpetuum mobile of punishment, was simply to
deprive the body of sleep, as in a suggestive device titled Juda’s cradle,
revolutionary but today forgotten invention of Ippolito Marsili, which
 A History of Violence 157

comes down to the combination of other elements: a more or less anal

pyramid with suspenders that should keep the tortured subject pretty
uneasy on it, depriving him of sleep and rest for an eternity of torture.
Facing this historical exhibition, a thought naturally comes to mind:
“He thought that in the history of the world it might even be that there
was more punishment than crime but he took small comfort from it”
(McCarthy 2010, 33). And what do we have today? By all accounts, this
kind of craft destruction of the body looks mostly historical, as it was
abandoned by the formal penal systems. One provided answer was the
monotony of prison and mesh of probation. The second, as suggested by
Eliasian scholarship, is anonymous mass destruction helped by new tech-
nologies and done at distance from the general population. Instead of the
individualized procedures of torture and some simple machines for prac-
tical induction and symbolic presentation of the individual pain, modern
technologies are used in anonymous mass destruction feasts, historically
exemplified by weapons of war—nerve gases, napalm, and the atomic
bomb—which brought new forms of death by burning; walking black
corpses looking like dogs; or frying eyes, lips, and ears that fall apart
from radiation and heat. Pain was publicly individualized only in post
festum testimonies of the survivors. Chemistry and particle physics in-
stead of medieval mechanics follow the contours of human body. The
horror was not reduced, only hidden. Although the bomb is an act of
war, comparable to technologies and practices of war in the past, it is also
an act of punishment, applied to enemy civilians. Violence may not have
declined in general, or it will return again in large numbers, even if some
of its forms have, at least for now, been dropping: it has changed, togeth-
er with punishment. The conclusion, beyond this repeated contrast of
extremes, offers some reflection on these changes and the history of pun-
ishment, summarizes the findings, and finally probes a bit into the mod-
ern historical extreme of the concentration camp.
As the episodes, examples, and theories in this chapter suggest, histo-
ry may be a hard pill to swallow for those who want a tidy, predictable,
and structured picture of it. Violence and punishment sometimes seem to
fit in this pattern of no-pattern, the semistructured chaos of multiple
speeds, regressions, and contingencies. This is one aspect of the story.
The other aspect, as the discourses probed here try to show, is that if a
Whig history is too much in terms of naïve normativity and ignoring of
everything that does not fit, it does not mean there are no patterns of
order subject to explanation. In the long run, history may appear as
somewhat linear (very generally, less intrapersonal violence in many so-
cieties and a reduction of at least formal public torture), but in shorter
distances, it may work cyclically (the return of harsher punishment in
new forms, depending on the constellations of factors having to do with
various conflicts, catastrophes, and political economy). Its unfolding
spawned a lot of violence and punishment that seems to diminish but
158 Chapter 2

then again blazes, amplifying itself here and there. General metahistorical
interpretations of it oscillate from Nietzschean gloom to Whiggish
naïveté or Hegelian metaphysics—that is, the dialectics of history, idea-
listic or materialistic—that in any case laughs at the micro-wave of re-
gressions as it confirms or looks at the comparative pockets of differences
(with which we deal in the next chapters), returns and aberrations, as
oases to be drowned in the advancing desert of uniform history. You
cannot escape the march of history. We may thus be going to the apoca-
lypse in a biblical fashion of trumpets and beasts, or drown in the bliss or
boredom of the unfolding of a rational plan that will cut all the conflict in
a secular utopian future, but I leave the various theological and meta-
physical tones and melodies for the last chapter. Within this one, perhaps
the best thing we have are middle-range theories that allow us, in their
pettiness, to bite and chew just as much as we can swallow, in hope that
we will in the long run not look more presumptuous, short-sighted, and
stupid than we actually were. They may be the best we have in trying to
make sense of the extremes, and that is perhaps the best way to frame the
preceding sections, replacing legal syllogism with an explanation of (vio-
lence and) punishment.
This chapter presented a gallery of grotesques, and varieties of pun-
ishment that history offered; in trying to explain them, it set aside the
general march of progressive ideas and institutions of Whig history, fo-
cusing on some penal hypotheses, with a few explanatory discourses
presented in a bit telegrammatic and ironical fashion. These were the
famous hypotheses offered by Durkheim, Rusche and Kirchheimer, Elias,
and Pinker (who offered a wider eclectic cocktail of historical analysis
building on Elias). The first discourse is one of socially evolving collectiv-
ities, with autonomy of power that can influence political violence and
punishment and return to brutality, while general imprisonment is with-
in that discourse an outcome of logistical abilities and complexity of soci-
etal development. Instead of slow, long-term progress, economy and
class oppression were highlighted by the second discourse, analyzing
cycles of punishment and hoping for an egalitarian revolution that will
kill off these cycles. The third discourse returned to the slow dynamics of
the civilizing process and state building, also opening space for decivil-
ization, as the fourth did, enumerating the better angels and offering
more prominently normative sermons, but not writing the demons of
human nature out of history. Societal complexities and vicissitudes of
power, small decivilizations of power, penal means depending on econo-
mies and cultural sensibilities: their hidden and overt normativities aside,
these discourses in the end are factual, complementary, and interchange-
able, making a nice choice from the menu that could be expanded and
made more nuanced.
I perhaps prefer them to go side by side as narratives illuminating
certain aspects of the processes that enable or disable violence and pun-
 A History of Violence 159

ishment (see table 2.1). Working together, they enable us to substitute a

tidier Hegelian movement of history with more down-to-earth and em-
pirical approaches, discourses that bring together things instead of di-
alectical moments of the phenomenology of spirit. They offer tools to
understand and interpret, and ideas to think about violence and punish-
ment in history and in the present. The first one sets the tone: punishment
not as a normative object—although, as I have suggested, it usually
comes to that in the end—but as a sociological object, a part of history
and society, an object to be explained. The first part of the chapter shows
that situation is murky and far from definite. The baroque of penal text-
books, caught by the lucid, postapocalyptic hindsight of McCarthy’s
father, became rationalized. The garden of torture and punishment spe-
cies becomes impoverished, and lesè majesté logic backed a bit. But torture
continued, prison worked as a dungeon, mass retaliations and post-Jac-
querie-like punitive feasts still seem possible if circumstances allow it
(events from the Middle East and North Africa provide some recent ex-
amples on the trail of the introductory croquis). However, these dis-
courses allow for reversal. If there is development or a trend, it may be
reversed. As the causes change, the effects change also. Economy
changes, politics changes, culture changes. Practice changes, boiling emo-
tions arise, situation are created or orchestrated, brutality emerges and
then, as the practices of punishment change, academy follows with its
legitimizing ideas revolving around or against the new practical develop-
ments. In the recent case of torture in the war on terror proclaimed by
George W. Bush, it was the problem of dirty hands, while Hollywood on
its part produced TV shows such as 24 or films such as Kathryn Bigelow’s
Zero Dark Thirty, involving rationalizations of torture as means before
calling for its problematization and assessment.
By pointing to these factors, these discourses are not only historical;
they also theoretically enable us to predict things. They point to various
conceptualizations, levels of analysis, and bases that enable punishment;
they show its economy and psychology, and also point to symbolism and
communicative layers of punishment, to its hidden and overt functions.
Economy, culture, and sensibilities change, and sometimes return; better
and worse angels or demons coexist, and secondary natures seem to
emerge in a balance of forces or crumble in the lack of it. And the subjects
change as abnormal things become normal and vice versa. Elias clearly
points to that. It is not like the Night at the Museum, appropriating history
for the purposes of contemporary apple-pie narratives where all the his-
torical personalities appear as funny subjects of today, masqueraded as
 160
Theory Discourse Punishment Cause Effect Ontology Politics
Durkheim Evolutionary Function Societal Retribution Functionalist Center
development and society
Politics prevention
Rusche & Marxist Function Structure of Class Dialectics of class Left
Kirchheimer the economy domination oppression
Class
struggle

Chapter 2
Elias Evolutionary Symptom Figurations Civilization or Figurations and Right
The civilizing decivilization; habiti within a (yep)
process bureaucracy developing
Commerce vs. “public psychological and
and politics ostentatious” social collective
Pinker Evolutionary Appears An eclectic Incapacitation Hippies are Right
within a cocktail of , deterrence wrong, Hobbes is
bigger story ideas, forces right; violent state
of curtailing and apparatus works
violence processes against violence
 A History of Violence 161

heroes of the past as in a theme park for the entertainment of kids. It is a

story of different ages and lost worlds that may sometimes reappear with
our sensibilities changing.
Is brutality natural or political? Or social or economic? These exam-
ples suggest the situation is mixed when one chooses to employ such
divisions in approaching the dynamics of life of human collectivities that
change their practices in changing environments. I say more about the
specific political aspect of this after some comparative vignettes are treat-
ed in the next chapter, and I mostly do it through a Foucauldian frame-
work, which is only one of the options for an analysis of power. To be
sure, Discipline and Punish, on which I mostly build, is a historical work,
and Foucault’s historical works imply theories of the historical change in
punishment, as well as a genealogy of the modern soul in a Nietzschean
sense and the exploration of the other side of medieval political theology
offered by Kantorowicz (1997), following the discursive production of
medieval earthly powers that invented a Christology of the sovereign
(the body of the king vs. the body of the condemned). I could have added
it as another discourse in this chapter, amending table 2.1, but it is con-
temporary in the same sense in which the Durkheimian laws try to ap-
proach social reality: it is an explanation of things present, even if it were
not an area of my special expertise privately warranting a special chapter.
This applicability of the same theories to both history and the present (as
well as the future) is something worth at least an elliptic reflection before
the final probing ends the chapter in the spirit of the book.
First of all, in comparison to the prior chapter, the discursive shift is
obvious to the reader: we have exchanged the probing of the normative
foundations of political violence with historical discourses of cause and
effect; it is punishment, not as a reasoned reaction of political community
to transgressions, but as an effect of forces within developments in a
historical time. History is something that is behind us. History is some-
thing that still unfolds. Or, paradoxically, history is something that
doesn’t exist—to play with the Borges’s immutable cat on the streets of
Buenos Aires motif, with Plato’s ideas against Kojève’s interpretation of
Hegel (see Kojève 1981, 11). There is only society in the eternal present
with permutations of the elements that produce effects, whatever we
choose to single out in trying to explain violence and punishment, and
perhaps govern them as we see appropriate in light of our theoretical
cognizance. These are the laws of society that in their timeless eternity
only look to history as an empirical warehouse of illustrations of things
that are still here. If things cannot be the same or at least similar, what is
the deeper point in studying history? It may be not important at all (see
Patočka 1999). The protestant grace of Babette’s Feast, a beautiful Danish
film based on Karen Blixen’s story that mixes destiny with a strong hint
of gastronomic fetishism, comes to mind here. To add some freshness to
the stale Nietzschean metaphysics of the eternal return, it may not matter
162 Chapter 2

if the things were completely different, or so the viewer may conclude

witnessing a mystical moment: a culmination of a perfect feast involving
the few-decades-older protagonists, one of which enjoyed just the same
gastronomic perfection done by the same cook, but in Café Anglais in
Paris instead of the austere west coast of Jutland.
However, I don’t want to end on an agnostic note, throwing any pat-
tern of order out of penal history, nor do I want to end on a mystical one
either, at the same time elating and erasing history. Probing the extremes
means concrete stuff and acute skepticism beyond Led Zeppelin’s lyrics
of all becoming one and vice versa. Let us take two cases to skeptically
test the theories. Although Chateaubriand wrote a classical Essay on Revo-
lutions, dealing with causes of the large-scale political violence, approach-
ing the subject in a Montesquieu-like fashion, he is more famous for
romantic expressions of his sentiments. Thus in his longish memoirs,
Chateaubriand discusses the forms of popular justice in the French Revo-
lution in the role of direct witness of history. The close encounter, if we
are to believe him, brought his living aristocratic head at the balcony face
to face with the dead ones upon the stick. After the naturalistic descrip-
tion of some eyes popping out of eyeholes and teeth clenching the iron,
the part comes where he expresses his liberal indignation to the revolu-
tionary mob parading with Foulon’s and Berthier’s heads on pikes, but
luckily with a well-secured door beneath the balcony that didn’t budge
and allow his head to be added to the collection. 22
As usual, the Vicomte de Chateaubriand went to the seas again and
left us with the question: how does this event, obviously a violent punish-
ment from our perspective, look from the frameworks offered here earli-
er? The people become the grotesque king with many heads. They prac-
tice spontaneous killings, beating to death, torturing, and exhibiting de-
feated enemies—as the almost dead and bloody body of tortured Gaddafi
was more recently put on display on the hood of a pickup truck within
the chaos and gunfire of the triumphant lynching mob. Small theaters of
cruelty burst in the revolution that with the mechanicistic means guillo-
tined a lot, as we have seen, as punishment was governed by the particu-
lar interpretations of the well-being of the republic. Revolution was a
feast of bloody punishment. And it fits almost all the narratives quite
well, even the Marxist one. It is, first, an autonomy of the political and its
contingencies in Durkheim. It is a temporary decivilization for the fol-
lowers of Elias and unfathomable gruesome event for the second nature
of a delicate silk-stocking on a balcony; it is an anarchic setting of state
institutions crumbling temporarily, a blowing wind in the sails of our
demons instead of better angels for Pinker. Both frameworks obviously
apply to the lynching of the Libyan colonel: violent anarchy instead of
dictatorship and the expression of abhorrence and disgust at the “animal-
like” behavior by the distant (Western) neo-silk stocking commentators
over the rampaging sans-culottes of today’s global differences that, ac-
 A History of Violence 163

cording to Ulrich Beck, make Bourdieu’s fine-grained sociology of French

class distinctions a sociological storm in a national cup of tea (see Beck
2005, 315). 23 And this fashionable expression of class differences can well
introduce the last narrative in line: Even from the perspective of Rusche
and Kirchheimer one might see it as an act of class justice, a spontaneous
act of people’s punishment, performing retaliatory punishment for the
oppression beyond judicial bureaucracy and bourgeois gimmicks of a fair
trial. It is Žižek’s dream—a revenge that (not only) temporarily suspends
routine injustices of political economy shaping punishment. It is as if we
were looking at different sides of the same coin, echoing Leibniz’s remark
about how he finds sense in anything he reads.
And finally, a short note about the big and gruesome historical phe-
nomenon still surrounded by a mass of literature, horror, and controver-
sy. Concentration camps—a hell on earth, according to Arendt. A bit
more precisely, these historically produced institutions offered such set-
ting of power—the roles for the subjects, paired with ideology, architec-
ture, technologies, policy instructions from the outside and the manage-
ment improvisations inside—that resulted in mass human suffering and
annihilation. Suffering is discussed shortly here, outside of abundant lit-
erature, since I mostly don’t need it to make my point. As is known, for
some, the camp is the paradigmatic place of the modern politics that
experiments with humans as homines sacri outside of law and inside poli-
tics, immersing them into a surreal semistructured chaos of the death
machine where humans are made into zombies and ultimately dead
pieces (die Stücke), as highlighted by the camerawork of the Son of Saul, or
leaving their destruction to the simpler sadisms of the harsh environment
of the labor camps, as in The Ditch. 24 For some, it is a symptom of the
dialectics of Enlightenment showcasing the inutility and insignificance of
life for the modern within the iron cage of rationality. Foucault, on the
other hand, saw it simply as a technology of power that, combined with
other elements, produced what it did, beyond the blunt concept of totali-
tarianism (see Eribon 2011, 495), while some saw any words and designa-
tions as vulgar and offensive or missing the point, since there is no way
to do justice in discourse to such mass suffering, at least when we are
discussing the Nazi lagers.
The Nazi lagers were used as a means of large-scale annihilation;
whether one frames it as racist thanatopolitics or employs religious fig-
ures of the sins of usury and killing of Jesus, it is here of less importance.
The context, explanations, and legitimizations, however interesting or
bizarre, are not of my interest here. One point is that the camp as such is
punishment to be explained, a large-scale metapunishment, backed with
whatever ideology of eugenics and cultural superstitions that produced
killing on the spot or transfer to multiple places of degradation and in-
dustry of death. It is thus not a “simple” pogrom but prolonged opera-
tion of annihilative punishment that demands explanation. However,
164 Chapter 2

there is another aspect of these places as microcosms that offer punish-

ments to regulate life beyond the wider context of a large political exter-
mination machine killing the mass of human beings without focusing on
any individual—in fact, destroying individual qualities of any singular
life. The Nazi camps also offered small operettas and Broadway acts of
sadism and torture, hangings and crucifixions, and other punitive experi-
ments. That is the second point.
With Branko Lustig—an Auschwitz and Bergen-Belsen survivor who
was interned at these places as a Jewish kid deported from Croatia, who
suggested he ate human flesh to survive, and was more explicit about the
human heads he carried around for money in Bergen-Belsen—and a larg-
er group of students and professors from my alma mater, I visited Ausch-
witz in the spring of 2014. 25 Lustig already described in-lager punish-
ments when he held a lecture year before as a guest lecturer in my class
on State and Violence. As he has recounted in the classroom and on the
spot, when we walked among the barracks and saw the ovens, as a part
of the populous and sometimes kitschy 2014 March of the Living, there
were shootings and hangings, sadisms and crucifixions, depending on
the camp and on the personnel. An industry of death was paired with
small theaters of cruelty in the places whose character was profiled in the
shocking early documentaries such as Resnais’s Nuit et Brouillard or in the
unorthodox but beautiful renditions such as Spiegelman’s Maus.
Instead of entering the gruesome specifics, the question is: how does
this on both points fit the theories that explain violence and punishment
in history? The answer is almost similar to the one associated with the
former example: all the theories say something that appears not to be
banal on the subject. For Durkheim, it is both social and political. Societal
development and organization enable the punitive operation, together
with what was later more firmly theorized as totalitarianism. An excess
of pouvoir and ideology could produce such a hybrid. For Elias (and
perhaps Pinker, but I am not sure), it is civilization as bureaucracy that
prepared the secluded sites of decivilizing punishments. It is, conversely,
a decivilization on the spot that accounts for the small medieval theaters.
And for Marxists, it is perhaps bourgeois decadence of Il portiere di note,
sadism emerging in a chaos that itself emerged from imperialism. The
excesses of chauvinism as an ideological idiocy come in handy in subject-
ing the proles to capitalism. Punishment in the camp is history and, as we
have seen, present. The sketch here was of the Nazi camps, but one might
vary the theme with the Laogai camps of China (I discuss some of that
present history in the next chapter) or with the Soviet Gulag as witnessed
by Solzhenitsyn (briefly treated in the sixth chapter), however different
the telos of these institutions and their practices were.
There are many more possibilities, such as exploration of horizontal
violence in the camps associated with the wide conceptualization of pun-
ishment. How would croquis from the introduction, their small econo-
 A History of Violence 165

mies, politics, and sensibilities, look in the eyes of these discourses? What
would we get in applying them to Kafka and Kieślowski from the first
chapter? Some crisscrosses and thought experiments have to be left to the
reader. We return to some of the issues tackled here after some compara-
tive browsing, which is a logical continuation of the discussion offered
here about history and present: will the contemporary menu of punish-
ment offer the extremes that contradict the narrative of historical pacifica-
tion and unification of punishment, constrained to the restrictions of free-
dom, probationary discipline, and the governments deductive operations
on the subject’s purse?

NOTES

1. Throughout the book and especially this chapter I use the terms Whig and Whig-
gish in the sense of optimistic belief in linear progress in history, associated with
British proto-liberalism but applicable to other ideological children of the Enlighten-
ment pairing structurally similar scenarios with different political content.
2. See the original statement from the Origin of Species in Darwin (1859, 83).
3. If narrowed down to the procedural means, torture can be succinctly defined as
the forced exchange of information for the relief of unbearable pain: “Much like slav-
ery, torture is coerced trade” (Chazelle 2009). History of torture accepts this elegant
definition but, as I argue, opens space for much more.
4. “Bataille did not distinguish the real from artifice, the movement of transgres-
sion from its representations in art and literature” (Jorgensen 2008). These important
distinctions are further discussed in the sixth chapter.
5. The photos of those hacked to death are perhaps not manipulated, as the young
Kallikak’s were made to look especially sinister, but Bataille seems not to be that
concerned with the possibility of an ecstatic and blissful look having to do with falla-
ciousness of a single snapshot and a significant dose of opium often mentioned in the
context of the slow slicing procedé, as Lo Duca observes in a captivating foreword to
The Tears of Eros (Bataille 1989, 5).
6. Sade was, not surprisingly, aware of the practice (see de Sade 1976, 281).
7. I cannot resist the sacrilegious temptation to add a fictional extreme, probably
going beyond the slicing in its extremity. The ninth bolgia of the eight circle of hell
alongside rebellious Bertran de Born has a figure of Mäometto storpiato, that is, the
Prophet seen as one in the line of Christian schismatics, appearing with a split body as
a “vaginal man” (see Miller 2005, 215, 218, 225 for some interpretational bravuras) on
the way to a decapitating sword-yielding demon.
8. It is, in fact, a copy of Doré’s Newgate Exercise Yard, about two decades older,
that is, however, easily associated with the experiences of another artistic genius who
suffered in the disciplinary institutions of his time.
9. At least for the French-loving folks, the etymological pun could be that la bour-
reaucratie, the rule of the hangman, was replaced by la bureaucratie, the impersonal rule
of rules and regulations.
10. For a scrupulous review (in Croatian unfortunately for those who find it unin-
telligible), see Mak 2001.
11. It is an old distinction, for example, to be found already in Manu’s Laws (Ma-
nusmrti). In Durkheim we find the following examples or subspecies belonging to the
aggravated type or la mort exaspérée: “The latter is of seven types: impalement, burn-
ing, being squashed under the feet of an elephant, drowning, boiling oil poured into
ears and mouth, being torn apart by dogs in a public place, being cut to pieces with
razors” (Durkheim 2002a, 9).
166 Chapter 2

12. This warrants a short reflection and a conceptual clarification. Shame is a mech-
anism of social control that can be more theatrical, operating with the visible body
somewhere between mark and sign, but it may take more “moral” or even virtual
form—of a pure sign—as in the cases of the mentioned virtual pillories. On the other
hand, it may be associated with informal social controls and local sentiments as a
disciplinary technology, even within a single family or circle of friends. It is a self-
standing social sanction that with the more formal and tangible political punishment
shares the ambition, often successful, to make us behave differently.
13. See Durkheim (1973) for the English edition. The translations from French
throughout this book, as in this case, are mine—mostly for fun, but sometimes for
accuracy and scrutinizing the standard translations. In the case of The Rules of the
Sociological Method, for convenience sake (I had it within a hand’s reach when writing)
I sometimes quoted from an English translation by W. D. Halls in the volume edited
by Lukes (Durkheim 1982), without checking the original. Shame on this author.
14. This is not necessarily a path to freedom but to a regularity of taming, replacing
excess with routine. Some passages from Moral Education read like Foucault but not on
the level of analysis but of the analyzed discourse of disciplinary society: “Discipline
in effect regularizes conduct. It implies repetitive behavior under determinate condi-
tions . . . the fundamental element of morality is the spirit of discipline” (Durkheim
2002b, 31). In contrast to this there is a horror of sovereigns young and old running
amok out of the excess of unrestrained power, the ultimate horror for disciplinarity:
“Since there is nothing to restrain them, they inevitably go to violent extremes, which
are self destroying” (Durkheim 2002b, 41). I return to this issue in the chapter on
power discussing types of power in a Foucauldian framework.
15. Aviram gives a useful initial review of attempts in the secondary literature
(Aviram 2015, 17–19).
16. See also “Concepts and categories are dynamic and changeable means of orien-
tation, which must let themselves be moved by the empirical material in which they
are based.” It seemed to me, after reading, that Søren, perhaps to no avail, performed a
bit similar exorcism on me as Elias did once long ago on him, an advice that seeks to
get someone on the move: “It is important to find your own theme, otherwise it will
mean that my concepts will be made static,” Elias instructed the young Danish student
(Nagbøl 2012, 104).
17. For a critical assessment of both Foucault and Elias concerning the taming of
violence and an intriguing narrative of historical curbing and development of the
social control of masculine violence, see Muchembled 2011.
18. To be precise, Foucault is mentioned twice in the notes of the book: among “the
prominent examples” of those false prophets who gave “grim diagnoses of moder-
nity” ignoring the data (Pinker 2011b, 707)—in the bad company of Freud, Bauman,
Husserl, Adorno, Horkheimer, and Lyotard—and in another footnote sandwich, be-
tween Bauman and Adorno, as a part of the club that is “[b]laming the Enlightenment
for the Holocaust” (Pinker 2011b, 735). Foucault is, however, explicitly dismissed in
the FAQ section of Pinker’s web page with a reference to Merquior (Pinker n.d.),
which is discussed a bit more in the chapter on power.
19. However, Pinker’s isolated ontological statements concerning individual sub-
jects are quite blunt, offering a combination of de Sade and Carlyle: “Now, there
surely are evil people in the world—sadistic psychopaths and narcissistic despots
obviously qualify—and there surely are heroes” (Pinker 2011b, 569). Writing for a
wider audience hardly fits into an ontological picture offered by Eliasian dynamic
figurations with lesser space for champions and villains.
20. This is especially evident in Pinker’s treatment of colonialism (see Pinker 2011b,
307).
21. Kiš was Hungarian Jewish-Montenegrin, if one is into identitarian details of
parental descent, but these at best serve as the start, hardly doing any justice to a
complex subject. His language hardly fits, neither linguistically nor politically, into a
 A History of Violence 167

one-nation box, but he is perhaps most clearly a towering figure in the history of
Serbian literature.
22. See Chateaubriand 2000, bk. 1, pt. 5, ch. 9.
23. This opens up the space for comparative Eliasian scholarship of differences of
figurations, political formations, and habiti across nations and regions of the world
and for the global approach to clashes and conflicts that appear out of migrations and
contacts of populations. This would make a basis for something that could be labeled a
global (Eliasian) sociology, or perhaps political science, of violence and punishment
interested in how these differences and contacts affect the involved and ultimately, for
political science, how they affect the political process and policy formation (in respect
to the governance of violence and the implementation of punishment).
24. If gastronomic metaphors aren’t too tasteless, then Jiabiangou is a piece of slow
food, associated with the gradual extinction/regurgitation of the bare life, versus the
fast food of Auschwitz, a lager as the more hurried machine of death.
25. Lustig, later winning two Oscars for production of The Schindler’s List and Gladi-
ator, ended in Bergen-Belsen when Auschwitz and the lagers to the east were vacated
due to advancement of the Red Army on the Eastern Front. There he faced the chaos of
corpses that unnerved the unrepentant Kapo Krammer, a site of horror that was to be
burned to the ground by the British flamethrowers. Lustig vividly talked of punish-
ment and torture within Nazi camps as a guest lecturer in one of my classes (the
lecture, in Croatian, is available on YouTube, posted by gradjanska akcija, 2013).
Strangely enough, at least on first glance, when asked by a student if he supports or
opposes capital punishment, Lustig affirmed that he is pro–death penalty. He used the
following agricultural metaphor: “Weeds should be exterminated” (in Croatian: Kukolj
treba istrijebiti), further explaining that once you kill, there is no going back (somewhat
as Shere Khan, Kipling’s man-eating lame tiger, I might add).
 THREE
Comparative Politics of Punishment
Stories from the Penal Peripheries

The late Carlos Fuentes is one of the big Latin American writers who
ultimately did not receive a Nobel Prize. His 2006 collection of sixteen
stories was brought together under the title Happy Families (Todas las
familias felices). The book, properly loaded with Shakespearean references,
was largely about violence in Mexico, often through the prism of family
histories. It offered an ironic word-play on Tolstoy’s opening sentence
from Anna Karenina on how all the happy families resemble one another.
They don’t, or it is hard to find a family that is really happy. Similarly,
and this is perhaps Fuentes’s point, it is hard to find “a happy country,”
in terms of its patterns of violence and punishment, or simply a similar
country: they are usually very different in their forms and practices of
violence and punishment. Fuentes observes the irony of these differences
in the fifth story, called Mater Dolorosa (Fuentes 2009, 85–102), written in
epistolary form. Señora Vanina, a mourning mother, writes to José Nica-
sio, the killer of her daughter, Allesandra or Sandy. José is a member of
an “indigenous community in Oaxaca” who later immigrated to the Unit-
ed States and became a citizen to end up on the death row:
I’m familiar with your situation. You became a U.S citizen in San Die-
go. It was a necessary step, I imagine, to overcome discrimination, no
matter how slightly. Now your ambition has worked against you. If
you were a Mexican, they would have sentenced you to life, and in the
end, influence would have set you free. Not in California. You’ll be
tried as a citizen of the United States. You’ll be sentenced to death.
(Fuentes 2009, 97)
“Perhaps I should have controlled myself. Perhaps I should have re-
peated the lesson of my entire life and continued to be a crouching man”
169
170 Chapter 3

(Fuentes 2009, 98), José speculates. José Nicasio believed he was worthy,
equal, but he was “partial everywhere, never an entire being.” As an
Indian, he was despised both by mestizo Mexicans and gringos (that is,
Americans of the United States). Always being “under,” he exploded
when destiny set up a moment where his eyes matched the gaze of the
Other, a gaze of fear, added to the usual “physical repugnance, social
scorn, racial discrimination” (Fuentes 2009, 98–99). The gaze of the young
woman said to him: “Don’t come any closer.” In an act that is both an
aggressive impulse and an allegory of violence with a historical and al-
most metaphysical layer that transcends individuals; he confirmed him-
self with violence as perhaps the only option he was left with.
If common sense takes the fictional incident at face value, it easily
discerns good and bad guys in an episode of violence. It is simply a
maniacal thing to kill somebody because of a “wrong” look—or worse, a
look that is only interpreted as such—especially if the victim is arguably
an innocent and certainly a physically weaker individual who is afraid
for who knows what reason. It is a sadistic immaturity of the subject
deciding to kill what he cannot possess consensually: the murder thus
appears as a frustrated act of (sexual) undesirability. However, Fuentes’s
discourse has another point. It wasn’t sexual or individual. He may have
been playing on the fears and stereotypes of the middle class: the naïve
subject, unaware of history and habitus, of everything that she carries
around, accidentally catches the gaze of the person whom she perhaps
perceives as the member of the street underclass, an uncivilized and dan-
gerous minority to be despised, in order to karmically receive what it had
been looking for because of the larger-scale injustice. As the story un-
folds, the classical trope of structural violence becomes more prominent,
bursting in an act of subjective violence for which the individual is pun-
ished by death. Nicasio wanted to fit in, doing everything right, but he
was always judged by his external qualities, those he did not choose: he
was “a stupid Indian,” “a token Mexican,” invited to the parties as a
mascot not to be taken seriously in interaction as an equally respected
person. Unheeded demand for dignity, a gaze of fear, and despise pun-
ishable by death. “Your fear was evil for him” (Fuentes 2009, 101); the
mourning mother, a person who would be first in line to judge and seek
vengeance and retributive punishment, and last to understand the mur-
derer, reaches atonement and finds peace in accepting the trope of struc-
tural violence. Fuentes’s collection, speaking of history and the present/
presence of violence in Mexico and the Middle America (or Kirchoffian
Mesoamerica), seemed quite pessimistic.
Although Kipling ended his stories with apocryphal poems, Fuentes,
in a more classical mode, gave each story a coda in the form of a free
verse “chorus” that, in a woeful, mocking, or ironic tone, comments on
the specific theme of the story that preceded it, be it the 1981 Massacre of
El Mozote or contemporary gang violence plaguing Guatemala. The last
 Comparative Politics of Punishment 171

coda, however, appended to “Eternal Father,” is called “Choruscodacon-

rad.” It is merely four words long, but serves, dramatically and precisely,
to conclude and mark the entire book. Referring to Conrad’s classic deal-
ing with colonial violence, adapted to film as Apocalypse Now, it reads
“the violence, the violence” and there is no full stop after the final word.
The story and the whole book read not just as a pessimistic parable of
structural violence but also as an allegory on problems of understanding,
especially the extreme differences in comparative penal policy.
Like each and every unhappy family, miserable in its own way, func-
tional on the outside but neurotic and strained when far from public
sight, or chaotic on the outside but without hidden secrets, so are the
penal polities, usually states, but one may instead think, for example, in
terms of localities and regions or other political arenas that rise and de-
cline in the course of history. It is the arena of differences where both
violence and punishment in a specific settings mix with questions of
class, sex, culture, and perhaps civilization, be it Elias or Huntington, or
with economy, ideology, religion, tradition, history, politics, and other
factors that can be analytically isolated and assigned to a scientific disci-
pline. To be sure, history also has its relatively obscure peripheries and
idealistic lies, revealed by the sociology of punishment. And there is such
a thing as the world that transcends borders. We see penal arrangements
and practices travel around the globe. However, as the panopticon has
blind spots in itself and in practice often tends to exclude more than
oversee, so do the narratives of general penal histories and penal global-
ization. The perspective of differences has to be taken into account. It is
especially present in the penal peripheries, a syntagma that demands a
qualifying excursus, necessary when the vocabulary of this chapter is
concerned. Periphery is arguably a question of perspective.
Many acute observations and nice quips are attributed to Gramsci. As
his new year greeting grumpily expressed hatred for the Saint Sylvester’s
Night frenzy, opposing the more or less bourgeois force of the calendar to
the projection of the real communist freedom, Gramsci also quipped that
east and west go all the way along the globe and that the rest is ideology,
even if he succumbed to the distinction practically (Gramsci 1977). In
other words, these coordinates may well be a part of ideological system
of dominance, a part of the system of global orientalism, to use the later
developed vocabulary of postcolonial political theory. Furthermore, the
phrase of the band that serves me to frame the discussion in the last
chapter on the theodicy of violence and punishment may serve to com-
plete this relativist geopolitical picture with the remaining verticalities
and polar ice caps: contra Game of Thrones and perhaps the older Northern
Exposure, there is no True North (or south), at least in the politics of vio-
lence and punishment. Power is everywhere on the globe. The lan-
guage—setting things right and wrong, usually in association with pow-
er—that originates somewhere is, for various reasons, accepted else-
172 Chapter 3

where, reproducing worldviews and ideas. This is easily associated with

the phenomena more or less akin to colonialism and exploitation, a prefix
such as neo- added or subtracted for the purposes of the contemporary
world. Speaking of directions may often be imbued with orientalisms,
colonialisms, auto-orientalisms and autocolonialisms, as well as the us-
age of distinctions between the center and its peripheries. Having said
that, somewhere things develop faster and then are exported, and a writ-
er scribbles his work for a certain audience, using some convenient cate-
gories while not unreflective of them or taking them for granted, which
hopefully makes them not a vehicle of power but of skeptical question-
ing. Thus, for convenience’s sake and very bluntly: first, in this treatise,
North America and Western Europe mean “center.” The rest, more or
less, is “periphery.” Second, the ironic qualifier: the extremes and periph-
eries, as we shall see, may appear at the very center in the first sense.
Finally, this distinction between the center and the periphery is impor-
tant not only for different and at first strange practices, exotically defying
the course of history, but also because the discourses from the center may
be associated or perverted into a discursive practice different than was
projected or expected, as the Foucauldian panoptical disciplinary prison
may in practice work like a warehouse of neglect and brutality (Alford
2000).
Let’s take the historical example of French penal colonies, the bagnes,
which combine the things mentioned—geography and power—as impor-
tant elements of their functioning, and where, “given their remote loca-
tion and great distance from the metropolis, local administrators and
guards had immediate and total control over life” (Toth 2003, 2). Playing
on the already declared “Foucault got it wrong” card, on how his dis-
course conflates “rhetoric with “administrative practice” (Toth 2003, 3),
the account on colonial guards, like Janis Joplin’s song, highlights the ball
and chain of these penal islands, “a penal land” (de Lamartine, quoted in
Forster 1991, 143) where the chain gangs roamed. The communal sojourn
of the outnumbered, hardly recruited guards with the convicts and cor-
poral punishment exercised by the former on the latter—both whipping
and informally used thumbscrews—are opposed to the model of monas-
tic regime and excesses of ideal Benthamite panopticism. The general
point relevant within this context is about the status of periphery influ-
encing the modality of punishment:
As historian Peter Zinoman has recently discovered in his study of the
prisons in French Indochina, these institutions were not sites of me-
thodical bureaucratic control, but premodern jails that had the unin-
tended effect of imbuing in its prisoners—through their shared sense of
suffering at the hands of an “antiquated and ill-disciplined” penal re-
gime—a distinct national identity which actually helped to facilitate
and strengthen anti-French sentiments. Thus, the penal colonies were
not like Foucault’s caricature of the modern prison; a vast, gray, mono-
 Comparative Politics of Punishment 173

lithic institution, mechanically ordered and rigidly stratified through

the ever-invasive panoptic gaze of professionals and staff. (Toth 2003,
3)
The center my cast its eye over the periphery to discover the horrors
that lurk there, as the French Third Republic did after the deportation of
the defeated Communards, but the point here is that if the center is not
what it says, it is more so for periphery, and thus an extreme to be
probed. Furthermore, and somewhat expectedly, the second introductory
disclaimer in comparative politics of punishment disclaims the first,
warning that the global peripheries are, as the name says, global and that
previous example neatly shows that, even if there is no direct influence or
perfect translation, there is no isolation either. To the unreflected surprise
of many, even today, the world is actually global, a place that can, for
example, be conceived as a Wallersteinan global system, where two
world wars, endlessly discussed in terms of causes by historians, are but
one big war, a fluctuation in the “world-system” with multiple cultures
and one division of labor (Wallerstein 1974). Within our perspective, this
points to two important tendencies.
First, some extreme comparative pockets may exist, coexist, and
counterexist, but swaying the local penal practices by technologies, ra-
tionalizations, and models works globally, in a constant process of coloni-
zation and changing of particular localities. In a given moment, a system
such as in Croatia might not have a fully fledged probation. In the next,
to solve the problem of the prison overcrowding, a system is introduced,
although again not imported ab ovo but with some new vocabulary and
bureaucracy layered over some existing penal traditions. Second, then,
this tendency may be partial or superficial since local traditions and ways
appropriate and interpret global arrangements in their way. They are, so
to say, countercolonized by penal localities. In Tonry’s words, which
could well serve as a motto of this chapter, “the determinants and charac-
teristics of penal policies remain curiously local” (Tonry 2007, 2). And
there are regional melting-pot arenas to complicate things a bit further
(such as the European Union with its ambitions of penal harmonization).
At least this second tendency makes the comparative politics of punish-
ment meaningful in a given moment of time. To close up the introduc-
tion, one might also understand the efforts of comparative politics of
punishment as seeking signs of the times in extreme places, where
strange things emerge or known things change or wane. It is, ultimately,
a potentially religious approach that, as a good Christian, seeks to ob-
serve the signs of time waiting for the Judgment Day. But first things
first. We do not offer a hint of a penal Armageddon here, but some
modest methodological caveats before (probing of the extreme) examples
and minicases.
174 Chapter 3

METHODOLOGY OF STRANGER AGAINST THE POLITICS OF

NUMBERS: COMPARATIVE PUNISHMENT AS THE PROCESS OF
UNDERSTANDING

There are some problems that plague any comparison in social sciences,
since the researcher, a social subject himself, approaches the compared
from the web of his own social meanings, stereotypes, and judgments
that can sometimes be constructive but often hinder understanding and
consequently lead to bad politics. Paradigmatically, someone who looks
around trying to understand different penal settings assumes the role of
the stranger, as described in the classical eponymous essay in sociological
phenomenology. As a stranger settles in a foreign setting that slowly
becomes his own, his initial combination of disinterestedness and stereo-
types is replaced by an understanding of cultural patterns as they are
seen by the natives. A tourist becomes a connoisseur, “vacant frames be-
come occupied by vivid experiences,” and “ready-made typologies disin-
tegrate” (Schütz 1944, 503). This all works for punishment where one’s
own ideas easily colonize those of others, often misrepresenting them
and biasing them without real engagement. To be sure, understanding of
a strange penal “culture” is a process that could benefit from ethnograph-
ic experience or social interaction but is not methodologically limited to it
(some remain strangers despite the ethnography). The point is, perhaps
that process of understanding cannot be reduced to ready-made recipes
or particular methodologies. Whatever you do, you can remain a stranger
for your whole life; some manage to do it, in spite of prolonged dealing
with the subject and operating competently on its surface. The further
problem is that normative approval or disapproval is not to be mystified
with understanding: to say some things are bad or undesirable does not
mean that they are not understood. It may be exactly the opposite.
Understanding does not mean approval.
To understand the Other in space as well in time, especially if the
differences are significant, is indeed “a field of adventure” (Schütz 1944,
506). It is an intriguing and risky process of probing the extremes, since it
is open to misunderstanding, whether in the form of imposing one’s own
worldview or in buying a native point of view that may be a simple joke,
as suggested by the controversies surrounding Margaret Mead’s ethnog-
raphies. First, there is a simple problem of misunderstanding a culture—
and the language as, arguably, its central part—in which the penal policy
operates. Zedner’s argument on how grammar and vocabulary of one
legal language can gloss over meaning and subtleties of the other (Zedner
1995, 518) work for the whole field of comparing penal policies and prac-
tices of punishment. For example, writing a text somewhere from the
American federation, one can “understandably understand” jail as a local
event concerning petty misdemeanors and operated by local sheriffs, but
administrative detention without judicial sentence can function as an im-
 Comparative Politics of Punishment 175

portant institute of authoritarian penal policies that can be misused on

the large scale in a police state. The remand population is not the same
category in democratic and authoritarian regimes. Second, and also
pointed by Zedner (1995, 518–19), the problem of understanding can,
from a certain perspective, operate as a political problem, thus making
comparison an exercise in imperialism. Although some references can be
found in Said’s Orientalism (1979), arguing that the Orient is a colonial
construct of the West used for domination—that is, not only academic
but also operative in exploitation since discourses can work, and they did
work, as a legitimization of certain policies—the idea is that concepts
have a particular cultural background. It follows that, when they are used
in comparison as universalizing tools, they can work in a colonialist man-
ner. The sociological, and perhaps even psychological, background is that
one’s own culture and policy ideas are often unconsciously understood
as a superior way of making sense and doing things. The politically in-
strumental distinction between strong, weak, and rogue states may serve
as an example of a conceptual distinction that legitimizes foreign inter-
ventions in various settings that may not be as simple or as bad as the
simple trichotomy would suggest.
Put simply, one can get sucked into it or remain outside; one can
misunderstand or impose a particular worldview and policy ideas with-
out subtleties. But unlike history from the previous chapter, one is not
dealing with the dead or the antiquarian entities that live only through
tradition, but with the living, who have a political voice. Maybe torture
was natural and just to our predecessors, but they are not here to object.
Not so with comparative politics of punishment. It is thus probably the
most rewarding but also extremely precarious area of probing the ex-
tremes. Although it does not cost us to reiterate that there is no single or
secure methodological road to get the things right, generally some static
typologies or universal theories tested on “large n” may be misleading or
even plain wrong, while more nuanced case studies or checking done
with ideographic care may do more justice, such as to the material in
Babel, a story of differences and misunderstandings that is dealt with in
the end. One of the important things to note is that the often implicit idea
that “good” causes “good”—for example, that regulated political econo-
my leads to lesser penal populations—or that bad causes bad—lesser
levels of welfare and civic participation lead to stricter punishments and
bigger prison populations—may not work at all in singular cases (see
Nelken 2009, 299, 306).
Let’s develop a simple example I have already mentioned. The under-
standing of detention as a local event reserved for a heterogeneous sam-
ple of petty offenders, perfectly understandable and reasonably accurate
in one political unit or penal culture, may be misleading in an attempt to
understand penal functioning of the other; to see the autocratic or author-
itarian regimes as associated with larger prison populations and to a
176 Chapter 3

lesser extent with population in detention (see Ruddell and Guevara Ur-
bina 2007, 101) is simply wrong in particular cases since an autocracy
may impose punishment by other means. Or, even more bizarrely, in a
simple confusion of nominal correlation in a number of cases and any
type of reasonable causal relationship, Christianity as a dominant relig-
ion, can be associated with the absence of capital punishment, with an
implicit suggestion that it is somehow working against the death penalty
as such, in contrast to Islam (see Miethe, Lu, and Deibert 2005). However,
as we see in the fifth chapter, the right question is, Which Christianity, in
which societies? And why? (And, conversely, which Islam?) One can see
that the methodologies that lead to such strange results—although they
can certainly open an interesting problem—have a problem themselves if
they jump from mere correlation in a number of cases to general state-
ments of cause and effect in all or any cases. If validity is ascribed to such
utterances as “Christianity as such is a factor working against capital
punishment,” seen as a general law, for some reason working for all
penal systems (just as gravity, aside of any reason or mental state, works
on all bodies in space) then one is in not on the right track. How to
account for the United States, a predominantly Christian state measured
by the number of practicing and traditional believers in society with the
highest absolute prison population in the world, and still employing
death penalty? Or, returning to various modalities of punishment, im-
prisonment as a sign of authoritarianism or lack of democracy: if it does
not work in the United States, which could be disputed, it certainly does
not work for Franco’s Spain, which was authoritarian and had dramati-
cally lower prison rates than the democracy that followed (Barberet
2005). Quite Christian societies can have the death penalty and authori-
tarian regimes might not always put people behind bars, especially on
full formal prison terms, even if many of them tend to do so. More funda-
mentally, by operating with the given numbers provided by various in-
stances that reached them through the usage of the particular methodolo-
gies and accepting their conceptual schemes, there is a risk that social
scientists could turn into the statisticians of the regime (statisticiens d’État)
(Bourdieu 2001b, 78). The important prior question may be: who is doing
the counting, how and for what purposes? (see Stone 2002). 1 Crime and
prison statistics may be diminished or amplified depending on political
interest, and they may hide important facts in specific cases.
One gets much more by in-depth comparison of similar cases, such as,
to take a gruesome example, the killings of children by children. The
torture and killing of James Bulger in the United Kingdom in 1993 and
the Jun Hase murder in Japan in 1997 exemplified extreme differences in
comparable cases. Public atmosphere, on the one side, was caught by
conservative philosopher Roger Scruton, whose voice for the reinstalla-
tion of capital punishment, expressing disgust that evil monsters will be
nursed and cuddled by official institutions, was amplified by the British
 Comparative Politics of Punishment 177

tabloids, while on the other hand, even the “populist” prime minister
Koizumi had no choice but to call for rehabilitation of the anonymous
serial killer, and even the victims’ parents did not sound revengeful or
retributive (Smith and Sueda 2008, 13, 15–16). When it comes to violence,
punishment, and the kids, Japan and the United Kingdom are for some
reasons different as shown by only two cases. The purpose of the illustra-
tion is not to dwell deeper into these cases but to show how a focused
comparison often has much more sense. The idea is, in any case, not to
take any numbers for granted but to coherently explain them. Take an
example of a nice study of comparative xenophobic violence and policy
reactions to them: “That Britain tallied 47,814 ‘racist incidents’ in the
same year that France counted 30 ‘racist and xenophobic actions’ does
not mean that racist violence is 1,594 times worse in Britain than in
France” (Bleich 2007, 160). The formal penal framework and policies that
led to such numbers were largely different, of course. One only has to
look at the unifying penal instruments within the global civil society
discourse, such as “hate crime report cards,” to see one facet of the differ-
ences. Despite the policy diffusion and homogenizations of penal law
and isomorphisms of penal policies, the traditions of human rights’ liber-
alism and affirmative action (assuming that special victims demand spe-
cial penal protection) put against nominally egalitarian republicanism
blind for differences of the concitoyens (assuming that all victims are the
same and that a special treatment undermines political equality) will look
and perform differently. As the cards will show, the United Kingdom
will be positive on “bias-motivated violent crimes as specific offenses”
and “bias as an express general aggravating factor” while, at least in the
year of the quoted comparative study, France will still have “only” one of
the desired conditions fulfilled: the existence of “bias as an aggravating
factor in specific common crimes” in its penal legislation (not to speak of
specific bias types and games of implementation beyond formalities).
Going wide in cases of comparative penal policies also means going
deep and thick. With that methodological cautionary remark in mind,
this chapter gives several examples from various regions and states that
illustrate various discourses and correlative practices of punishment. I
have randomly picked some interesting cases from the Middle East, the
Far East, and Europe to illustrate some, in my opinion, interesting and
arguably peripheral perspectives on penal policy variations. I often ven-
ture into recent history to extract an explanation of the present, which is
hardly avoidable given path-dependencies of the policies and structure
of violence. The divide between this chapter and the former is artificial in
that sense. There are such things as comparative penal histories—of the
present. Finally, another point of this discursive lineup is to dismantle
stereotypes of culture as an easy way out when something is afar and
looks exotic. It can be culture but the concept often dissolves into some-
thing else.
178 Chapter 3

THE MIDDLE EAST UNDERNEATH INTERNATIONAL CONFLICT:

RELIGION, POLITICAL VIOLENCE, AND THE GHETTO OF
PUNISHMENT

In the field of comparative violence and punishment, it is usually the

mixture that is necessary to explain the extreme. The whole of culture in
the widest sense, which sort of eschews operationalization, is divided
into segments that are not corporeal. Although social life is structured
according to them, it can function outside of them, However, it can be
analytically divided into them and we can consequently discuss the rela-
tionship between these autonomous systems, as in Niklas Luhmann’s
sociology (or Carl Schmitt’s political nightmare) of autonomous systems
that influence one another, with a society of societies as no pleonasm but
a theoretical apex of his constructions. Economy, society, culture, com-
munity, politics, religion, and so on, depending on the perspective (col-
lective psychology, civilization, nature, biology), are spheres where fac-
tors that interest us are placed and from there influence violence and
punishment, as in the preceding chapter explaining changes in history.
What better place to illustrate this abstract idea than the Middle East?
Unlike, for example, the Nordic countries of today, the Middle East is
usually thematized as an area par excellence of the conflict of collectivities
in the international arena, as a region that holds the key to violent con-
flicts of global relevance. But it is also a region par excellence where vastly
different penal regimes exist, intertwining religion or ethnicity with poli-
tics and power.
Why do they still chop heads for certain crimes in Saudi Arabia
against the narrative of Whiggish history? Is Islam against history? If so,
why don’t all the Islamic countries have the same penal regimes? The
most extreme neocaliphate that went more than medieval in penal terms
stands on the one point of the spectrum, and on the other we may put
Muslim population from Bosnia and Herzegovina (BiH), who, aside of all
the identitarian differences between peoples that inhabit BiH, share much
with them in the wider perspective, and certainly a secular penal regime
without the death penalty and with moderate prison sentences compared
to the, let’s say, the ones in the United States. 2 Bakir Izetbegović, the
political leader of the Party of Democratic Action (SDA) mobilizing the
Bosniak vote in a power-sharing setting, could use the old trope when
inviting people not to leave the country to fight for the Islamic State: it is
neither Islamic, he said, nor is it a state. 3 The point is that Islam as such,
whatever that would mean, could hardly be employed to explain differ-
ences in penal policy and the answer from our perspective lies in a com-
bination of factors, in a specific interpretation of the religious text, which
is by itself a theme of the fifth chapter, and an absolutist political setting,
whose influence on punishment was already hinted at by Durkheim and
is further explored in the next chapter.
 Comparative Politics of Punishment 179

Saudi Arabia is not a secular country. It is state where Sharia law

serves as the penal law and ultimate source of penal policy. The ground
norm of the regime is a decree of the late King Fahd, proclaimed at the
beginning of the 1990s. Aside of putting royal power into the hands of the
Saud dynasty, descendants of King Ibn Saud, it sets the Koran as the
constitution of the state. The questions of its practical application are set
by one of the Sunni traditions of the fiqh, the Hanbali school, while the
influence of Salafism, or in another words pointedly fundamentalist
Wahhabism, is also important. 4 The death penalty is executed by saber in
a public place—on the Dira square in the capital, Riyadh. Although it is
not that glamorous or accompanied by an impressed crowd, the sove-
reign machine—long ago codified in a categorical religious code—keeps
chopping. One Western journalist literarized the experience in an account
where spruced epithets are contrasted with the banality of the procedure
underneath them and its somber fish-market routine:
At 9 a.m., the executioner gently lowers the blade to jab at the con-
demned’s neck, which jerks the prisoner’s body to attention. Then the
real blow: the blade is drawn high up, then swung back down. It
cleaves skin, muscle, and bone with a hollow, echoing thud. A lurid
crimson waterfall chases the head to the granite with the sound of a
wet rag being wrung out over a stainless steel sink. The body sways
forward, snaps up, and slumps off to the right. The executioner wipes
his blade with a white cloth that he then tosses away. It flutters in small
arcs as two men in blue jumpsuits descend from the yellow van, hoist
the body, and lay it on a stretcher. One grabs the head by the cloth tube
that covers it. A loudspeaker lists the decapitated man’s crimes: rape,
drug trafficking, and possession. The executioner sheathes his sword.
A thickly bearded soldier claps his hands and wipes them against each
other in the air—that’s it. By 9:05, the only other person in Chop Chop
Square is a janitor, hosing down the granite. (St. Patrick 2009)
Murder, armed robbery, drug smuggling, or dealing (as the contem-
porary empirical referent of the traditional crime that spreads mischief
through the land by corroding the integrity of God’s community) brings
death penalty by beheading, sometimes paired with a post mortem cruci-
fixion of the beheaded body, a form of gibbeting that illustrates the sove-
reign’s ruthless resolve, as the stoning has to involve penal performance
of more members of the community instead of single professional execu-
tioner doing the job, since sexual transgressions such as some forms of
adultery—the hardest zina crimes (or zinaluk, debauchery or fornication,
as it is called by the Muslims in Bosnia and Herzegovina though as a
moral, not legal category)—demand such symbolic of a collective con-
demnation. In Saudi Arabia, a Sharia theocracy is paired with autocratic
monarchy, also grounding its power on the rich oil reserves. It is a rental
theocratic state that traditionally keeps good foreign relations with the
United States. The result, in terms of punishment, is quite drastic by
180 Chapter 3

contemporary standards, a rich catalogue of capital crimes enforced by a

centralized sovereign power that claims the lives of those who question
the regime in both its components, such as young Saudi liberal Raif Ba-
dawi, who was arrested in 2012 for his unorthodox blogging and charged
with apostasy in 2013 and sentenced to an economic fine—however,
paired with no fewer than ten years in prison and a thousand lashes, the
first fifty of which were administered in front of a mosque in Jeddah in
the beginning of 2015, inducing a storm of international protests.
If this vignette is not extreme enough, a Shia regime in Iran, estab-
lished during the revolution and initially governed by the religious au-
thority of Ayatollah Khomeini, may offer some complementary details in
the genre of the punishing of the body. The elementary context is the
following: from the late 1970s, a collectivist theocracy replaced the shah’s
secular dictatorship and brought with it a penal system consonant with
Khomeini’s ideas on exterminating injustice with the help of Sharia law
or, more generally, the laws of Islam. Together with strictly prescribed
Sharia punishments, the hudud, the three remaining categories of penal
law, are the retributory law of quisas, regulating retaliatory compensa-
tions for various wounds, impairments, and taken lives; diyya, when
these compensations are financial according to the legal tariff; and, final-
ly, tazir, the “discretionary” penal law (in the sense of being free from the
mandatory constraints of religious discourse). Although tazir is not a part
of the Sharia canon, and the term can, for example, apply to such things
as traffic violations, vandalism, and pettier penalties associated with mis-
demeanors, it is not necessarily less strict and encompasses imprison-
ment as well as corporal and capital punishment. For example, the strict
punishments for various infractions against public morality and religious
rule(r)s or for political dissidence—that is, everything caught under nu-
merous general clauses foreseeing penalties for insulting and subverting
the Islamic revolution, the clerics, and the regime—fall within this spa-
cious category of everything not specified by the Sharia. These four divi-
sions of punishment are at the same time analytical categories of Islamic
jurisprudence and the first-order categories of penal policy encoded into
the Islamic Penal Code of Iran.
The point here is not to meditate about the scenes of hanging on
cranes as modern technological gibbets or in the plastic specifications of
“quality of punishment” concerning stoning or penal details concerning
sodomy, although the simple reading of Article 100 and Article 112 of the
penal code may shock some penal sensibilities: specification that “[t]he
flogging of an adulterer shall be carried out while he is standing upright
and his body bare except for his genitals” and the state penal interest in
specific roles taken during a sexual intercourse (“If a mature man of
sound mind commits sexual intercourse with an immature person, the
doer will be killed and the passive one will be subject to Ta’azir of 74
lashes if not under duress.”) may today sound outworldish or at least
 Comparative Politics of Punishment 181

strange. However, the idea of probing the contemporary Iranian penal

policy is, first, to note how discourse of punishment expresses societal
values that are different from those of the contemporary West and, sec-
ond, how corporal punishment or penal mutilation is not such a taboo,
even in certain cases in Europe, and how vast differences framed as a
clash of civilizations may not be so vast after a minimally careful compar-
ative examination beyond tabloid coverage.
The first point is easily measured by the mentioned diyya principle, a
compensation that is administered for injuries and killings, as a religious
codification of an old tribal custom of paying blood money that is present
in many cultures and penal mores of the past (e.g., wergild in Germanic
tradition). According to codified norms and developed jurisprudence, in
the specific case of Iran and the Shafi’i fiqh among the Sunni madahib, the
life of a Muslim man is more worthy or costly in terms of diyya than the
life of a Muslim woman. A life of a woman measures up to half a diyya (a
nominal unit refers to the life of a man), while the left testicle, perhaps
considered more potent in terms of reproduction for some reason or asso-
ciated with some historic cultural folklore not devoid from the first spec-
ulation—I don’t dare investigate this further, as well as the bizarre histor-
ical theme of Adolf Hitler’s monorchism having to do with the possible
damage to the more virile of the future Führer’s testes, related to the “left
thigh” injury acquired during the First World War, or at least to the
popular war reveille about the enemy leader, chanting that “Hitler has
only one ball” (while “poor old Goebbels has no balls at all”)—measures
up to two-thirds of a diyya. This rule, without any circumventions and
hypocrisies, both bluntly and grotesquely reflects a patriarchal society
and gender inequality. To paraphrase and abstract Mandela’s saying
about prison: you may know a country by reading its penal code or, if
you care for comparative differences and implementation, by knowing its
penal jurisprudence.
The second point is associated with the first one and follows almost
naturally. It can be told through the prism of an international and highly
visible case that made it both to the serious venues of discussion and to
world tabloids. There is a practice, not only in Iran, of mutilating vio-
lence, a mode of informal punishment performed by men on women who
somehow insult their partner or don’t conform to their expectations, for
example, by refusing marriage. The punishment for leaving a man meas-
ures up to a brutal retribution of a small offended patriarchal sovereign
who cannot cope with refusal and abandonment. It consists of throwing
acid into the victim’s face, which thereupon melts, causing pain and med-
ical problems for life and, of course, destroying that person aesthetically
as an erotic subject of any kind on the normal love market, turning her
face into something similar to the face of Raimi’s Darkman played by
Liam Neeson. 5 Exactly this happened in the case of Ameneh Bahrami, a
young Iranian woman whose rejected stalking suitor threw sulfuric acid
182 Chapter 3

into her face in 2004. Despite almost two dozen operations, she ended up
blind and with the face of a hideous melted mask (Kamali Dehghan
2011).
In the second act of this penal drama, there is a formal penal policy in
place to react against such practices. First, beyond imprisonment and
financial compensation, the victim insisted on the right of corporal retri-
bution she had according to the old principle of quisas. It was almost
literally an eye for an eye. At first, the only difference was that—as death
penalties are more or less sanitized, ranging from rope or bullet to gas or
injection, that is, today it generally excludes perfectly literal retribution,
such as the butchering of the butcher—the procedure in the hands of the
state has become somewhat controlled and sanitized. Instead of throwing
the red bucket of acid back at the attacker’s face, the judgment was to
anesthetize Majid and that Ameneh would administer a certain number
of drops of acid into each eye of her malefactor, under the supervision of
a physician in a hospital (either the victim or a representative can per-
form the retribution, according to law). The judgment induced both re-
vulsion and protests from humanitarian civil society actors and affirma-
tions of retributive sentiments expressed on the Internet fora, following
the victim’s initial resolve. In a complex case involving international
pressure and the state paying for multiple complicated operations, it is
worth noting that the discourse of the victim who got the chance for
retribution also employed the idea of general prevention. Ameneh cited
the deterrent effect such a punishment would have in the future on all the
potential perpetrators (of this informal male honor punishment), adding
a note of retributive satisfaction to justice in the fact that Majid was mock-
ing her in court but now is on his knees praying for mercy—or at least
one eye (Bozorgmehr 2008; Klinger 2009; Newson 2011). “For what
amount of money would you take my place? For how much money
would you sell me your eyes?” she asked rhetorically (Klinger 2011). 6
In the end, it was neither two nor even one eye—the perpetrator kept
them both coming out of jail after the long internment. In a high-profile
case of various interventions, discussions, postponements, and pleas,
Ameneh finally backed down from her initial penological reasoning and
resorted to more classical mercy, forgiving the perpetrator, which is also
provided by the Iranian penal system based on religious principles. How-
ever, she still stood on the diyya track of financial compensation for dis-
figuring her face—a money which she did not get in the end. This lead
her to question her decision in the wider context of the penal culture of
acid attacks (Kamali Dehghan 2015). Even if the possibility of more or
less literal talionic retribution added some gender egalitarianism to the
story, the specter of the discriminatory diyya tariff haunted this case also,
since, according to some sources, the number of eyes to be destroyed by
acid was in the last court decision before the execution reduced to one,
seemingly having to do with inequality between men and women even
 Comparative Politics of Punishment 183

when it comes to acid-gouged eyes (see Wieland 2011). However, our

extreme point on this nowadays extreme matter is a bit unexpected, mov-
ing away from further details of the illustrative case, which got huge
media coverage. This case, along with stoning, may not be so far from
cases in the West, at least in the specific area of sexual crimes. The exam-
ple can be found in surgical castration, mechanical in essence, as well as
perhaps the less drastic chemical variant that does not cut but also acts as
a penal regime on the body.
Revulsion is high: practicing pedophiles are, for now, one of the rare
remaining universal scapegoats. Using a generally helpless child for sex-
ual gratification—in cases of serial offenders, this is often paired with
murder—horrifies and legitimates various penal practices beyond prison
that stay outside the general penality of secularized nation states and
their fragile agglomerates such as the European Union. Relatively high
prison terms are paired with lists of offenders and notifications, and
sometimes with the impairment of their capacity to sexually perform.
This is prevention, similar to some of the discourse surrounding Ame-
neh’s case (although probably more “special” than “general”), but argu-
ably also a retribution that metonymically works on the guilty member:
(some) thing has to be cut off and it is actually done in Europe. The
world-famous tabloid the Sun brought up coverage of castration policy in
the Czech Republic (see Stojanovski 2011) that was framed as a potential
role for the United Kingdom’s anti-sex-offender policies, highlighting the
rights of the victims against the concerns of human rights groups and
transnational bureaucracies (such as the Council of Europe). 7 The differ-
ence is in the fact that this punishment for what is today almost univer-
sally considered an extreme sexual violence involves the aspect of self-
punishment, definitely blurring the lines between treatment and punish-
ment (McAlinden 2012, 175). It is, to conclude this extreme, a testicular
self-flagellation that is demanded from the higher self of the otherwise
unrepentant offender who, like Peter Lorre from M, announcing our sixth
chapter, cannot help himself and begs the punishing instances to do their
thing: “Speaking via a translator from his secure unit in the Czech Repub-
lic, Josef said: ‘I wish I had been castrated years ago and would advise
other repeat violent sex offenders to have the operation. It was painful
but afterwards I felt calmer, more balanced. I was able to think more
about my life and how sorry I am for my crimes. Now I would trust
myself to live near a school’” (Harvey 2009).
And now for something completely different, as Monty Python fans
might say, or at least something pretty distant from the remnants of
corporal retribution, prevention, and the surrounding discourses, includ-
ing their possibly eccentric interpretation, hopefully legitimate within the
probing of the extremes. The distance, after all, may be only on the sur-
face, since all punishment has something to do with differences between
punishing and the punished and with power relations, including the pre-
184 Chapter 3

ceding examples having to do with sex, gender, values, possibilities, and

their reductions. In Israel, penality in certain aspects works as an ethnic
division. It is an important trait of a relatively young and interesting
penal system of a state that has been described as an ethnic democracy
(Smooha 2002). While the Zen Buddhist story of a butcher who, like most
marketplace mongers, exclaims, “Everything that I sell is the best” (and
causes the enlightenment of the passing monk), which might contain a
grain of truth or more, there is no such uniformity in the penal Babylon:
Israel seems to be a real gem standing out, a case that combines the story
of political violence and the extra-penological functions of a penal system
that can be told with some references to history and to the recent judicial
decision that contains a crucial point of comparative politics of punish-
ment: that the same institutions might not function in the same way in
different settings. Or, in other words, they might not be the same, even if
such things as “prison” or “death” seem banal enough to bring no signifi-
cant difference in structure and performance.
Israel had a comparatively large prison rate of about 300 prisoners per
100,000 general population peaking, in the second half of 2000s, a number
that in the meantime declined to about 250, according to the World Pris-
on Brief. It is not extreme, but it is not a small number either even when
one-sixth reduced. Explanation does not lie in religion significantly influ-
encing and shaping penal policy. Islamic Sharia perhaps has its historical
parallels in the tradition of Orthodox Judaism; Sharia religious–legal
rules have an equivalent in halakha (the 613 mitzvot or commandments
Maimonides enumerated), and practical reflection on their application,
the takkanah, can be compared to fiqh. However, Israel is a secular state,
one of nationalist militarism perhaps, but with leftism and kibbutzim as a
part of its tradition. Despite its presence in public, political radicalism
and influence in politics and policy shaping, Orthodox Judaism (the
Haredim most conspicuously) is not a political discursive force shaping
penal policy of the State of Israel. Penal policy is not clerical at all. In the
sense of penal policy, Israel belongs to the contemporary West, with the
still-working taboo on corporal punishment of mature subjects in
contrast to the Sharia, foreseeing such penalties and, in its interpretations,
even preferring it in comparison to prison. However, prison in Israel is a
bit extreme, at least in terms of being an interesting phenomenon for the
academic interpretation. Prison in Israel can be understood as an ethnic
ghetto without the influence of religious discourse. Its early history hard-
ly warranted predictions of such development.
A system of civil imprisonment was introduced in Israel in October
1948. Its beginnings were modest, counting fewer than seventy prisoners
which fell to fewer than thirty in February 1949, sentenced to life impris-
onment for the harshest crimes (Korn 2003, 29, 33–34). War policies of
Israel or its retaliations for terrorist attacks in the Middle East may be
called a death machine, but Israel’s penal policy, unlike many of its
 Comparative Politics of Punishment 185

neighbors in the region, is no such thing. Other than a certain Nazi man-
ager, stubbornly following us through this book, whose mercy pleas were
rejected by Yitzhak Ben-Zvi and he was hanged in 1962, only one death
penalty has been performed in the history of the state, and, symptomati-
cally for the state’s situation, for treason, but the accused, Meir Tobianski,
court marshaled and executed in 1948 by a firing squad, was exonerated
the next year by Ben-Gurion. A laconic note “killed by mistake” was
inscribed on his tombstone. Although death penalty is still present for
genocide and under military law of the state of exception, it was abol-
ished for murders; from the beginning of the state, there was a de facto
moratorium on the death penalty and it was abolished for murders by the
1950s. As in the West after World War II, the proclaimed programs of the
penal policy talked about rehabilitation and resocialization; the belief of
the day was that education and reform will create citizens from criminals,
useful and law-abiding subjects (Korn 2003, 34–35). However, as things
sometimes tend to develop, criminal justice soon began filling prisons
with prisoners and things went in the business-as-usual manner: prisons
came to be overfilled in spite of their growing capacities, which can today
formally accommodate about 25,000 prisoners. As Korn shows, rehabili-
tation was as elsewhere, a rhetorical ideal more than a practice, even
within the Jewish population. However, Arab prison population in Israeli
prisons—the primary object of our interest here—surged after the occu-
pation of the West Bank and Gaza Strip in 1967. It was a matter of secur-
ity and incapacitation in the state interest, understood in the terms of
political Right: they should best be kept behind bars and their escape
prevented. Korn describes penalization of Arab minority in Israeli pris-
ons in the following manner:
Since the establishment of the State of Israel in 1948, and until Decem-
ber 1966, a system of military government was imposed on the Arab
population living within the boundaries of the state. During this peri-
od, more so than at any other time in the annals of the state, the crimi-
nal justice system has served as an important mechanism for regulating
the relations between the Jewish majority and the Arab minority. The
political use of the criminal law and the emergency regulations defined
new categories of offences specific to Arabs. Thousands of Arabs were
convicted and tried every year in military courts and sentenced to fines
and prison, as a result of the restrictions imposed on their movements,
and as a result of the criminalization of ordinary accepted behaviour
like free access to the land, going to work, marketing agricultural pro-
duce, etc. (Korn 2003, 33)
This development can be placed within the reproduction of centrifu-
gal tendencies in a divided society and the frame of ethnic democracy.
Similarly to the way that Loïc Wacquant stresses nonpenological func-
tions of penal policy and prisons in the United States, placing its mecha-
nisms in the context of a racial divide of society—a prison being the
186 Chapter 3

modern substitute for the ghetto in the United States (Wacquant 2001)—
the extreme is here found in the usage of punishment as a political instru-
ment to manage ethnic conflict. The logical reasoning, spiked with some
elementary empirical guesses and commonsense speculations—perhaps
a best solution next to the empirical examination of each and every case
that is not performed here due to the nature of the quick overview—is
roughly the following. Theoretically, the disparity may be a mere coinci-
dence, a sum of individual destinies that result in the brute fact of ethnic
or other group ghetto. This is theoretically possible, but highly unlikely
in the real historical world. Discarding this thought experiment of coinci-
dence of masses doing crime and consequently doing time subtracted
individually, there are roughly two possible explanations. The first is
explicitly or implicitly offered from the Right. It is often the unspoken
explanation of the ruling nation, colonial elite, or class: criminal minor-
ities are morally depraved or somehow evolutionarily lacking—which is
sometimes euphemized in the sphere of culture, as Bourdieu noticed—or
maladjusted. The second ideal explanation is that they were and/or are
oppressed and disadvantaged, with systemic inducements to breach the
rules and/or with systemic discrimination when they, for whatever rea-
son, face the justice system. I choose to stick with the second one, under-
stood as a heuristic maxim or a vague ideal type, notwithstanding any
sort of political correctness. Instead of barbarians to be civilized by the
means of penality of superior culture, be it whip or prison, the idea of a
politically problematic minority that is repressed probably offers a more
plausible solution. Beyond private crime, one thinks of the Arabs grazing
sheep (referred to in the earlier quote) or doing “bad things” because of
the political oppression in a vicious circle of political violence.
Indeed, only in the State of Israel, without the “Occupied Territories,”
the rate of Arab imprisonment was six to seven times higher than those
for the Jews and, as Korn explains, a good deal of the imprisoned were
sentenced by military courts because of breaching the state of exception
clauses, which could include moving without permit or grazing sheep on
the lands where this was customary but the land had in the meantime
been appropriated by the state (Korn 2003, 37–39). Endangering state
security accounted for 80 percent of the imprisoned serving sentences,
while that number halved after Palestinian self-government was estab-
lished. These penalties were harsh and procedurally questionable from
the due process perspective: “Palestinians from the Occupied Territories
are tried mainly in military courts and sentenced to longer terms of im-
prisonment than Israelis. During the last decade [the 1990s], more than
half are serving sentences of over five years and one-fifth are serving life
sentences” (Korn 2003, 43).
Given the arguable political function of a prison system, this case
further offers a very interesting context for the assessment of the vast
literature on privatization of prisons that offered general arguments and
 Comparative Politics of Punishment 187

also evaluated practices mostly from the United States and the United
Kingdom. The still-lingering questions are reasonably familiar, even to
the general public. Is punishment a prerogative of the state, or should one
distinguish allocation and provision of the goods with the possibility of
the mass contracting out of incarceration, as the garbage collection is
contracted out in some local arenas—that is, the privatization according
to a complete DCMF scheme? 8 What about principal–agent problems,
since motive of the private agencies is to maximize profit at the expense
of “service”? What about the transaction costs involving the controlling
instances? And, besides the Michael Moore type of debunking where
corruption is demonstrated (e.g., in the case of corrupt judges and legisla-
tors favoring private interests—as in the area of health services and too
easy prescribing of psychiatric medication that works on the chemistry of
the brain by those who receive direct payments and other inducements
from the industry), other tools of political economy can be mobilized,
such as Hirschman’s exit, voice, and loyalty trilemma (Hirschman 1970).
In this context, it may refer to the dysfunction of the market–service
scheme where delivered “goods” are imprisonment services, and prison-
ers do not have the blessing of the exit option, even if it literally applies to
various leave benefits and parole schemes. “That kind of luxe just ain’t
for us,” as Lorde Jelich’s modulated voice puts it. Even if they can shout
“Attica! Attica!” the voice by itself doesn’t work too well in strict hier-
archies and castelike divisions. It isn’t often heard in repressive settings,
almost as in Ridley Scott’s Alien that was marketed with the slogan: “In
space, no one can hear you scream.” Furthermore, to return to earth, all of
this may be countered since the bureaucracy itself has problems and
there are tools that can be devised to control the private economy, and so
on. However, the reader is probably asking by now: Where is Israel in the
dilemmas of the contracting out of punishment to the private sector?
The comparative politics of punishment, as usual, offers an interesting
touch here. When the Israeli Supreme Court struck down the possibility
of private prisons, the argument was that imprisonment is something
essentially in the hands of the state. It belongs to the core of its public
functions, the state is solely responsible for ensuring dignity in such deli-
cate matters, due process is better guaranteed if profit is not made out of
it, and so on. To cut a long story short, private prisons and corrections
industry opponents who see it as a highly decadent, corruptive, and de-
grading business, should at first be delighted by such decision. However,
the argument ran that in a setting such as that just described, of political
imprisonment and a strong hand of the state working through its agents
and secret services—something that has long ago gone from James Bond
movies and good old paranoia to realities of various whistle-blowers and
empirically to well-grounded theoretical descriptions such as Agam-
ben’s—have freer and potentially dirtier hands when prisons are within
the sole operation of the state (see Harding 2012). It is the same firm, so
188 Chapter 3

the cooperation of services doesn’t seem too problematic generally. Al-

though there are departmental divisions and conflicts within subdivi-
sions (think of many movies and police series where the plot is built
around conflict between the federal police and local forces of law and
order), access is certainly easier when all involved units are under aus-
pices of the state. Political governing can make bureaucratic functionaries
find an arrangement or close one or both eyes. Low-level whistle-blowing
or obstruction from, like Argus, an all-seeing street-level bureaucracy is
less likely—heroes and nonconformists aside—since it is a Zimbardo-like
setting where a systematically induced situation leads to oppression.
The other interesting and perhaps more extreme point closely asso-
ciated with issues of the introduction and the first chapter brought by this
case is a specific type of political violence that stems from the conflict of
various political factions within Jewish ethnic space. It both ends this
section and announces the next chapter by framing political violence as
punishment—a working of the sovereign power in a specific setting
where, as in Schmitt, informal punishment associates itself with the
friend–enemy distinctions. It is both history and present, as usual in these
kinds of themes, and especially in Israel. It is a situation described in a
book by the late Israeli political scientist Ehud Sprinzak, who used the
fraternal metaphor to frame these phenomena and seek the answer to
questions about political and cultural conditions under which many Is-
raeli Jews saw violence and killing as a legitimate political means (Sprin-
zak 1999, 7). Violence was associated with the very institution of the state,
in a way that is, comparatively, very instructive. The problem of the first
prime minister and Mapai (Labor Party) leader David Ben-Gurion was
how to hold a single center of power in which he was very resolute and
uncompromising, showing “the uncommon resolve . . . to establish and
maintain a single center of authority” (Sprinzak 1999, 83). He crushed the
militant Irgun, led by Menachem Begin, in an open game of punishment,
sunk the ship Altalena carrying guns for Irgun in a 1948 famous incident,
and a bit later coined formulae rationalizing his policies as defending
Israel’s sovereignty against the people of fist, “hooligans and political
assassins” (Sprinzak 1999, 57). Menachem Begin, who in that incident
chose not to respond with violence and escalate the conflict into civil war,
renewed his political inspiration on the wave of opposition to reaching
the reparations settlement with Germany. Begin opposed force and legiti-
macy (having to do with real power), somewhat akin to Hannah Arendt
later: “I know you have force. You have prisons, concentration camps,
army police, secret service, guns, machine guns, never mind. Against this
matter all force will be broken like glass against a rock. We are going to
fight this just matter to the end. Physical force is meaningless in such
matters, absolutely meaningless (Sprinzak 1999, 56). 9
Sprinzak wrote his book after the rightist extremist Yigal Amir, un-
satisfied with the Oslo Accords and Palestinian self-government, killed
 Comparative Politics of Punishment 189

Prime Minister Yitzhak Rabin in 1995. Sprinzak claimed that Ben-Gu-

rion’s style of politics monopolized violence and reduced anarchic politi-
cal violence in the early days of the state (Sprinzak 1999, 86). It is punish-
ment and counterpunishment in community, where the head of order, as
a Hobbesian human, is extrajudicially executed in a vigilante death pen-
alty. Anybody can kill anyone—that is base-level Hobbesian egalitarian-
ism; a political community strained with legitimacy problems and ex-
treme polarizations may sport such kind of never-ending punishment
games.

FAR EAST UNDERNEATH THE CULTURE: TRADITIONS AND

IDEOLOGIES OF PUNISHMENT

Obscure oriental brutality, undecipherable despotism strange as a Chi-

nese encyclopedia, Yakuza tattoos as intricate as a Thai kitchen: crap or
culture? Each has its particular delicacies, bits and pieces operating with-
in the whole of meanings and mores, traditions and language, differences
into which human collectivities are put to live. However, once a stranger
enters inside a particular community and the “culture” is scratched
underneath—one of the spatial metaphors of this chapter—the unspec-
ified whole dissolves into various factors shaping punishment beyond
mystifications of strange signs and obscure prejudices. In this chapter, I
exclude Japan, Barthes’s empire of signs, whose history and policies are
today quite well known, at least through popular culture and scholarly
work highlighting its traumatic transition to modernity culminating in its
Second World War escapades and the breakdown of fascism; the stories
of Western-style penal populism demanding genbatsuka, a stricter punish-
ment for violent crime (Miyazawa 2008) or the secrecy of its capital pun-
ishment policies (Johnson 2006), still trumping any compassionate Bud-
dhism, Pure Land or other, scrutinized in the fifth chapter. After some
general remarks on cultural argument about punishment are provided,
three examples uncover extremes of punishment from arguable penal
peripheries: a rich authoritarian polis, a communist country that has a
capitalist economy, and a bit on a post-totalitarian state dealing with
revolutionary punishment as crime against humanity under the auspices
of a tired and vapid international bureaucracy.
Can we speak of the Far East’s culture of punishment? Sometimes Far
East countries are framed as lands of Confucian culture. In this perspec-
tive, Taiwan, the Koreas, Vietnam, and Singapore, for example, are
lumped together with China. In that interpretive key, Huntington’s skep-
tical formulations highlight the collectivistic and authoritarian tendencies
of the Confucian tradition in conflict with democracy while, on the other
hand, Fukuyama’s position is cited, accentuating the elements of Confu-
cian culture compatible with democracy (such as the relative tolerance of
190 Chapter 3

Confucian egalitarianism in comparison to the Islamic, Hindu, and Chris-

tian worlds, paired with the dubious claim on the allegedly less cruel
historical account associated with this construct (e.g., Merkel 2010, 319).
These two tendencies correspond roughly to the methods of softer social
control and the harder aspect of sometimes cruel repression, so-called li
and fa, as alternative concepts for managing of violence and punishment
(see Wang 2009, 694–95). The Analects are an important reading on pun-
ishment, offering wisdom of Master Kong, an ideology of an intelligent,
middle-class bureaucrat, advocating filial piety and other methods of soft
control framed as the basis of good order, and I cover them briefly at the
end of the fifth chapter. But this is only a facet of a more complex tradi-
tion (see Fairbank and Goldman 2006, 62) mixing with other traditions
and ideologies in various amounts in different regions and states. Even a
rudimentary knowledge of Confucianism suggests that a narrative,
whether of higher or of lower cruelty of Far East countries pushed into
the straitjacket of Confucianism is at best a stereotype, a superficial ro-
manticizing or vilification of meagerly known “Other.” Using a compara-
tive culture model may be helpful in a specific sense, which is also briefly
covered in the fifth chapter on penal religions, but it may also be a deter-
rent in a search for knowledge of the discourses shaping other penal
settings. From an academic point of view, its mentioning and usage de-
mands caution, almost as in a renowned Nazi saying, coming from a play
dedicated to a saboteur executed by the French occupying authorities in
Ruhr, that one should reach for a gun when hearing the word culture.
One of the problems in that sense is the following: culture, generally a
positively connoted term such as tradition, is used as a discourse of penal
change within the political arenas of communication. It is a combative
category within the politics of history. Ancient history is selectively read,
coded as “culture” and positively connoted as ancient wisdom and con-
fronted with politics (as something bad, selfish, and sometimes cruel).
For example, this is exactly the maneuver in the quoted text about Korean
penal policy concerning the themes of our preceding chapters, the death
penalty and penal history: “In order to break free from the present spiral
of politically driven arguments over capital punishment’s legitimacy, it is
time to develop a culture-based pro-abolition argument that revives the
humanitarian elements of traditional penal policies” (Cho 2008, 196). Ex-
iting the “largely Eurocentric debate on penal modernity” (Brown 2002,
404–5), or more widely, an Atlantic-centric occidentalist frame, should be
careful in the face of these mystifications. The following extremes—cor-
poral and capital punishment as a part of a zero-tolerance penal regime,
punishment as an ideological education and democide as punishment—
show how things are both more simple and more complex than the all-
encompassing umbrella of culture would allow.
The penal facts about Singapore are common knowledge. Punishment
functions smoothly, order is respected, and the death penalty is not rare.
 Comparative Politics of Punishment 191

Months and years, fines and rattan beats, and the rope. There is a precise
tariff for drugs possession, there is a death penalty. Cumulative punish-
ment is possible and applied, except when death is the sentence; the state
tries to dignify the death row. Marks on the body and corporal pain
would be superfluous in the shadow of the capital punishment. In any
case, it is a wet-dream paradise for the proponents of severe punishment.
There is even public shaming for smaller infractions. The order is defined
with punishment as a highly functioning and present institution. Twice
each week corporal punishment is performed at Changi, a prisoners’
camp during the Japanese occupation, as are death penalties. Mercy is
rare. Political and economic context is simple: Singapore is a rich semiau-
thoritarian island state with one party in power after independence ac-
quired in the middle of the 1960s with their exit from the Malaysian
Federation. There is effective media censorship, and its strict penal policy
fits well into this political and economic picture. The murder rate is ex-
tremely low and security of life and limb is high, at least for the political-
ly placid average Joe; other crimes are also low, at least those that are
processed within this framework. (This book, I should here perhaps re-
mind the reader, omits the discussion on the intricacies of the high-level
“sophisticated” political corruption in favor of the banalities of the lower
strata strikes, blows, and punishment for physical violence.)
On one end of a spectrum, according to zero-tolerance philosophies,
crimes are defined with strict, one might say draconic, punishment for
small infractions—such as littering the proverbial fags and cans, fatal
chewing gums sticking to the soles, and so on, which are fined strictly
and if necessary in the community, with a cleaning “chain gang” logic of
public work. For recidivists or those villains who dare to throw some-
thing larger on the street, such as tin can or a bottle, both stigmatizing
and forced labor punishment were introduced in 1990, with the Correc-
tive Work Order program, which prescribed cleaning of garbage in pub-
lic places in fluorescent vests. As we shall see, it is no coincidence that
parallels were drawn between this penal policy and preceptoral public
shaming in the Chinese Cultural Revolution (Chan 2003, 65), although
the latter worked within another political-economic system and with dif-
ferent ideological presuppositions of continuous revolution with the idea
of definite destruction of the bourgeois subject in the movement of the
masses.
On the other end of the penal spectrum, the death penalty is, unlike in
the Sharia system, not public. It is predictably prescribed in the case of
political crimes, such as treason and armed rebellion, but also for violent
crime committed with firearms and possession of a certain amount of
drugs. It is highly visible and was not long ago amplified in the interna-
tional public space through the writings of Alan Shadrake, a British jour-
nalist and vociferous critic of Singapore’s harsh criminal justice, who was
himself tried and sentenced for its disrespect in 2010 to several weeks’
192 Chapter 3

imprisonment and a fine of 20,000 Singapore dollars for promoting a

book in Singapore that is critical of its justice system (Shadrake 2005).
Interesting in our context of probing contemporary penal extremes, Sha-
drake wrote about one of the remaining champions of the waning profes-
sion, Singapore hangman Darshan Singh, who in his long career of ad-
ministering death that began in the late 1950s has executed more than 850
persons. Together with some eerie details that can really be encompassed
by the concept of the penal culture of the lost trade with its own profes-
sional benchmarks (and conventions of style), his career witnesses the
harsh state’s reaction to violent crime that in quick retribution takes the
lives of those who deal drugs or take part in violent crime with firearms:
Mr Singh joined the British colonial prison service in the mid-1950s
after arriving from Malaysia. When the long-established British hang-
man Mr Seymour retired, Singh, then 27, volunteered for the job. . . . Mr
Singh is credited with being the only executioner in the world to single-
handedly hang 18 men in one day—three at a time. They had been
convicted of murdering four prison officers during a riot on the penal
island of Pulau Senang in 1963. He also hanged seven condemned men
within 90 minutes a few years later. They had been convicted in what
became known as the “gold bars murders,” in which a merchant and
two employees were killed during a robbery. . . . He carries out the
executions wearing simple casual clothes, often just a T-shirt, shorts,
sports shoes and knee-length socks. To mark his 500th hanging four
years ago, four of his former colleagues turned up at his home to cele-
brate the event with a couple of bottles of Chivas Regal. (Shadrake
2005)
Speaking of drugs in Singapore, one might also meditate on its ex-
treme harshness of punishment: according to the Misuse of Drugs Act,
production of drugs is punishable by death, as is the possession of more
than fifteen grams of heroin, more than thirty grams of cocaine, and more
than half a kilo of pot. Lesser amounts can amount up to thirty years of
prison and fifteen cane strikes with a painful rattan. This brings up the
last theme: corporal punishment and cumulative punishment, which fit
uneasily in the picture of Whiggish penal modernity, reduction of cruel-
ty, and rational rehabilitative punishment. As usual, an illustrative anec-
dote can introduce the controversial issue. An act of vandalism can cause
a clash of penal discourses and strain in international relations, which
was certainly the mid-1990s case of young Michael Fay, an American
citizen who committed what was, for some, a petty teenage rampage
involving destruction of property; he was sentenced to four months’ im-
prisonment, six cane strikes, and a fine of 3500 Singapore dollars. The
case aroused the American public, caused diplomatic tensions, and Presi-
dent Clinton wrote to his colleague, Singapore president Ong Teng Che-
ong, in favor of the convict. However, cumulative punishment intransi-
gently stood in spite of the diplomatic pressure, including the physical
 Comparative Politics of Punishment 193

component (Hodson 2003). There was only a slight remission. Some mer-
cy was added—the number of strokes was symbolically reduced from six
to four, to acknowledge the good manners between sovereigns, diploma-
cy, and facts of power in the international arena. One less would be
measly, three perhaps too lenient.
Interesting question for us is, first, why is this extreme? What was the
fuss all about, if not for a mixture of teenage buttocks, Malay rattan, and
an American role in the international arena? Today, certainly in the aca-
demic world and in official penological discourses but also in the wider
public, corporal punishment of grownups is something generally bizarre.
For example, let’s take a look at the second “new and improved” edition
of Graeme Newman’s book evoking the Star Trek motto of the daring
Enterprise crew (Newman 1995). Outside of the contemporary penal para-
digm and sensibilities, it advocated electroshocking as a method of pun-
ishment that would theoretically bring reciprocal pain on the body of the
condemned using modern technological means. The book was marketed
with the following lines: “More Outrageous! More Shocking! More Con-
vincing! More Challenging than ever! Substantially revised and ex-
tended, Newman takes his argument one further logical step—and treads
where no other criminologist has dared to go.” 10 Even if Newman was
right in some way—like Foucault’s Mendel in The Order of Discourse, who
was right, but outside of the truth, challenging the established biological
paradigm (Foucault 1971b) and I am not claiming that—it could certainly
not have practical consequences in the modern penal world of the West
as it is now.
On the level of official state-backed penal policy, physical punishment
became a taboo. As once torture was abolished, so too did corporal pun-
ishment wane, holding itself for the longest in prison as a method of
punishment within punishment, but even there, as we have seen form the
French penal colonies example, it was withdrawn and replaced with dep-
rivations of various benefits that work as a currency in the inmate world
and with the ludicrous invention of prison within prison—a solitary con-
finement that proves that average human being, contrary to the stoics
and the originary cynics, is social. If Newman offers too much technology
and fantasy, a criminological combination of Tesla and the daring Next
Generation captain Jean-Luc Picard, Peter Moskos spoke directly of flog-
ging. His extreme but logical reasoning confronts a person with a simple
dilemma: Would you rather lose some epithelium and feel some pain
during the inscription of the sovereign’s marks on your private parts and,
perhaps, psychologically feel and sociologically receive some extra
shame with the fact of flogging, or would you rather spend your time in
prison? He has a simple point: the cane is either too lenient or too harsh,
but it cannot be both at the same time (Moskos 2013, 2). Moskos, in
continuation of Newman’s probing, wants to say that the rejection of
corporal punishment is hypocritical since the practice of imprisonment is
194 Chapter 3

not one of a lucky combination of long-term loss of freedom as a clear-cut

retribution paired with a program in which one will correct and rehabili-
tate in order to resocialize. Instead, to enter prison is to enter the violent
milieu of surplus retribution and a potential informal program for recidi-
vism. It is also a place where one might, according to the jungle rules of
Darwinian prison physiciocracy, suffer secondary retribution in a harsh
environment, which some would certainly find worse than judicial can-
ing. In Moskos then, the cane, an old and venerable tool of paternalistic
punishment, reveals the hypocrisy of prison, whose essence is still fear,
torture, and violence.
From such a perspective of certain proponents of alternative penal-
ities—a perspective of looking at the truth from outside the truth just as a
warm fireplace is observed from the cold through the window—Singa-
pore appears as a penal utopia, a dream of real discipline and enforce-
ment of rules that cannot be realized in the United States or, more gener-
ally, in the West. Singapore works as an extreme penal role model for the
initiatives to return corporal punishment to prison. However, why does
Singapore retain (among other things) judicial corporal punishment, to-
day appearing as extreme, abhorred, or desired “penal Other”? Let us
recall that our former executioner still worked under British rule—a colo-
nial civil servant, one might say. This fact offers a hint on how to answer
some explanatory questions about the practices of punishment in Singa-
pore. Is it religion? Is it culture? Culture dissolves here, as well as relig-
ion. Singapore exemplifies penality as tradition. It is not associated with
the penal discourses of Islam, which serves as a basis to legitimate corpo-
ral punishment in many penal systems and some in Singapore’s close
vicinity. Singapore has an Islamic population, but this population is not a
political majority. It is only a smaller part of a religiously mixed popula-
tion who also declare themselves as Buddhist and Christians. Unlike the
neighboring Malaysia, Islam is not used to create the official penal policy
in Singapore; similar severity, for example, concerning drug possession,
may not have the same explanation. The answer lies in its history. If we
browse the world map, judicial caning is mostly present in African, Car-
ibbean, and Pacific states and statelets that, if they are not Islamic, do not
share much in common—except for the peculiar fact that they share a
venerable heritage of British colonialism. This gives a good enough clue.
Unlike formerly discussed Iran and Saudi Arabia, countries such as Bar-
bados, Tonga, Zimbabwe, St. Vincent, and the Grenadines still have judi-
cial caning in their punishing menu; whether boys or men, cat or birch,
official caning is a shared trait of ex-British colonies that have kept corpo-
ral punishment. And this is one of the sweet historical ironies of the
comparative politics of punishment.
Unlike Canada, Australia, and New Zealand that have long ago abol-
ished birching and caning, these countries have preserved the punishing
practices of their former colonial masters. Not that Canada, Australia,
 Comparative Politics of Punishment 195

and New Zealand are in a civilizational status beyond violence, a perfect

hippie commune like Huxley’s Island (which we will step on several
chapters from now). Perhaps it was quite the opposite—but the fact is
that the specific technique and tradition of birch and cane was imported,
hit the ground, and stood. In the colonial center, comparable to the planet
Psychlo from the science fiction classic Battlefield Earth in the middle of an
intergalactic empire, caning was abolished after the Second World War
and about twenty years later in prisons, where it had persisted. Other
former colonies followed: Canada, India, New Zealand, and the federal
Australia, and finally even the penal autonomy of the Isle of Man suc-
cumbed before the disciplinary auspices of European judicial instances
caring for human rights, which put an end to caning there.
Punishment appears here as a penal plant that found a healthy soil
where it could live and thrive in multiple speed penal histories implied in
the prior chapter. When the British colonial hangman went into retire-
ment, he was replaced by an indigenous equivalent, whose record in
applying the method was quantitatively more impressive. A harsh penal
policy has eliminated indiscipline in a tidy and economically propulsive
society—almost as the totalitarian dystopia of the memorable Demolition
Man (starring Stallone, Snipes, and Bullock, where graffiti poses the
harshest problem for a pacified police force)—but still resorting to tradi-
tional methods, while the political Left is left with the option to highlight
its high price, association with authoritarian political structures, and hu-
man rights breaches as well as its dubious causal connection with the low
violent crime rate. However, it is reasonably sure that for some time
practices of the West that were once normal will, from the arena of com-
parative penal policies, haunt it as specters or sprites—or living dead,
zombie penal institutions, to mix the metaphors of this paragraph some
more and provoke thinking—depending on the ideological position of
the subject, who will either dream of penal extremities of corporal pun-
ishment or despise them as barbaric.
In China, punishment, in one of its interesting aspects, is still ideologi-
cally trying to redescribe itself as a culture in the realm of international
academic and political marketing. To understand the China of today,
with its stadium executions and the still-going system of working camps
of reeducation, one must return not only to its long and glorious past, li
and fa, already briefly tackled in a note, but first and foremost its commu-
nist sublimations and extreme amplifications. The key of Chinese com-
parative penality of today still lies in the Cultural Revolution, Mao’s
ideology, and its implementation by the Red Guards. A paradoxical for-
mation of bureaucratized remnants of antibureaucratic movement offers
a glimpse at the history of the extreme and its consequences in the
present. A caveat is that this short sketch, as others, is highly elliptical,
speculative, and selective, and that both issues of political violence and
widely conceptualized penal policy and politics are certainly influenced
196 Chapter 3

by Chinese constitutional structure and variations within the big, popu-

lous, and ethnically complex territory of “a socialist state under the peo-
ple’s democratic dictatorship.” Punishment and violence in Beijing is not
the same as that in Xinjiang or especially Tibet, however loud the ideo-
logical proclamation of the alliance of workers and peasants as a unified
subject of revolutionary changes.
On the one side, Chinese punishment seems harsh, almost as harsh as
Singaporean penal practices, with the arbitrariness and torture of politi-
cal dissidents added. Amnesty International and dissidents speak of op-
pressive Chinese criminal justice. With its firing squads and lethal injec-
tions for corruption, drugs, and violent crime, it is a global synonym for
state repression and severity. On the other side, however, a certain ro-
manticizing of informal social control, associated with Confucian tradi-
tion, is professed simultaneously. China seems as moderate and wise in
punishment. Wise prevention, it is said, cuts the weeds at its roots; Chi-
nese skepticism toward formal legalism and its ability to govern the con-
duct of the people is highlighted, and the close relationship between
Chinese philosophy and thought and all-encompassing prevention and
education is posited, everything contrasted to the Western, especially US,
harsh and nocuous excessively formalistic penal policies, especially to-
ward young offenders (see Zhang and Liu 2007, 549–52). This discursive-
ly constructed penal tradition is associated with the ontology of good
individual (see Zhang 2008, 155), a human being driven into violence
only by bad and unjust structures of society or sometimes thoughts and
ideas (see Liang and Wilson 2008, 251, 255). This, however, does not
prevent the development of optimistic policies of violence control de-
manding the mobilization of the whole of society (from which the bad
influences come):
Traditionally, Chinese have believed that all human beings are born
with an equal potential for being good (Dawson, 1982; Troyer, 1989).
But some people become bad, mainly because of their environment,
and what should be blamed is the bad influence from the environment
not the person’s inherent nature. This is especially true for juveniles
because they are growing and have not matured completely. . . . None-
theless, the Chinese experience and law suggest that delinquency pre-
vention requires an entire society to work together (as the old African
saying goes, “It takes a whole village to raise a child”). (Zhang and Liu
2007, 549–51)
If the explication of the wise Chinese tradition by the invocation of
African oral tradition and the strange combination of insisting on infor-
mal social mechanisms and a belief in formal reforms as the means of
penal betterment are not enough, then skepticism will be increased by the
available facts. Although even if, with the gray zone of various educa-
tional and working camps and various modalities of administrative de-
 Comparative Politics of Punishment 197

tention, the relative imprisonment rate is much lower than in the United
States and the Soviet Union, there is something fishy in having up to 200
or probably more people per 100,000 in some kind of imprisonment if
villages raise the child in a Confucian heaven. 11
The paradox is solved via the introduction of the other pole of penal-
ty: legal sanctions, litigation, and strict rules—or, in short, fa—which, as
we have suggested, appears in a cyclic exchange with moral education, as
in other societies that use a bit longer words and sentences to explain the
same ideas of formal and informal social control. The Qin and Ming
dynasties are known as the historical example of the domination of the
second pole, while the Han dynasty, following the stricter Qin, distanced
itself from the policies of its predecessor (Turner 1999, 240). The first pole
has specific ideological content codified as five key relations: between
father and son, ruler and the ruled, husband and wife, older and younger
brother, and two friends. If everyone obeys his or her role, the result is a
harmonious society that escapes violence and does not need legal sanc-
tion: “Confucius believed that if all people behaved properly, a harmoni-
ous, just, and stable society would result. Accordingly, there would be no
need for law” (Li and Ma 2010, 37). 12 And how does Maoism, our key
explanans of Chinese penality, stand between those two poles, now that
we have a clearer picture of them? I think the following statement can be
made: Maoism, destroying the content of the first pole and applying its
method, produced a repressive effect quite resembling the second. The
movement unleashed violence against alleged bourgeois structural freez-
ing and large-scale punishment and destruction that had been aban-
doned in its starkest forms to quietly accept capitalism under the ruling
monopoly of the party that, following Durkheim from the last and Fou-
cault from the next chapter, stuck to the repression, death, and hard labor
as a penal method.
The Maoist variant of communism brought a specific penal policy
phenomenon driven by ideology: public punishment as part of the Cultu-
ral Revolution. The Cultural Revolution introduced collective sanctions
without the formal legal process. The masses in revolutionary ecstasy
destroyed bourgeois property and status symbols, devastated churches
and monasteries, and generally wrecked much of what is commonly con-
sidered a cultural heritage, which is what often suffers both in ultra-
progressive secular revolutions and upsurges of ultra conservative relig-
ious fundamentalisms. Beating and public humiliation of the “bureau-
crats” at mass public rallies, accompanied by reading of the indictments
by the Red Guards, returned punishment to public. Incorrigible public
enemies were executed in public, and many perished in the savage lynch-
ing of excessive beating.
This policy of punishment is not a spontaneous expression of popular
anger but rather an integral part of the doctrinal system of Maoism,
which rests on two pillars: “the mass line” and “the continuing revolution”
198 Chapter 3

(Brady 1977, 129–30). Interestingly, this revolutionary doctrine, reflecting

itself in punishment, offers a consistent discourse that, in a clash with the
reality of social life as it is, qualifies for membership in a club of gro-
tesque extremes. The mass line means a break with the idea of the party
as the vanguard of the revolution. The key is instead in the countryside
with farmers, where a revolutionary has to get familiar with the way of
life and the problems of a (failed industrialized) nation. The social condi-
tions of the peasant revolutionary base are something one must live and
experience. The second ideological tenet of Maoism meant constant mass
political action against the “bureaucratic freeze-up.” Instead of an ideal
communist society, there is a danger of revolution spawning a new com-
munist bureaucracy, a counterrevolutionary force of quasi-bourgeois elit-
ism. This “bureaucratic ethics” means new social differences, stratifica-
tion between the controlling minority and unprivileged majority, the fa-
voring of “officials over citizens, the educated few over the less sophisti-
cated many, the city-dwellers over the farmers, and men over women”
(Brady 1977, 130).
These political principles relevant for governing of penality were crys-
tallized during the twenty years of war Chinese communists fought with
Chiang Kai-shek’s Kuomintang regime, which was ended with the estab-
lishment of the People’s Republic of China in 1949. They were also a
direct criticism of the Soviet revolutionary doctrine (Leninism specifical-
ly, with its idea of the elitist “vanguard” party) formulated during the
establishment of communism in the Soviet Union. But they exploded
ideologically and practically in the second half of the 1960s, after the
failure of the Great Leap Forward, a campaign of modernization from
1950, in the so-called Cultural Revolution, whose protagonists viewed it
as a popular revolution against the bureaucratic centralization. In this
period we can see ideological formulation and practice of the policy of
punishment as the extreme important in influencing the present. The
Cultural Revolution, in fact, had its own understanding of justice. It was
transcribed as people’s justice. That meant justice is not universal, but
political, meaning that it is, according to Brady, subjectively developed in
the context of political struggle, while crime was understood as a specific
symptom of broader social contradictions:
Popular justice . . . does not seek to armour the social status quo; and
some conflict is seen as an inevitable, if painful, side effect of ongoing
revolution. Most crimes are regarded as extreme expression of broad
social contradictions which extend to the non-criminal public. The of-
fender, then, is not usually “sick” or “counter-revolutionary”; but he/
she offends because of “backward social attitudes.” These backward
attitudes, like criminal acts, are only an exaggerated version of more
widespread misunderstandings in the community. (Brady 1977, 137)
 Comparative Politics of Punishment 199

The separation of the courts and prisons, the abandonment of the judicial
process to professional judges and lawyers, and the executions of sen-
tences to the prison administration, are for the Maoist conception,
contrary to the spirit of the revolutionary people’s justice. There is, thus,
no single justice as, for example, in Greek texts. Justice posing as univer-
sal is bourgeois justice that hides and cements social contradictions,
which are always lurking behind the criminal acts of violence. Sanctions
of imprisonment are considered as a harmful bourgeois heritage, isolat-
ing the offender from the community, the only place where he can be
reformed. Instead of being left in the clutches of the judges and their
application of law to the facts of the case, penal policy was given to the
people as a collective agent that combines “factual investigation, political
analysis, reflection, and criticism-self-criticism [sic],” while the penalty
was executed in the community: “The continuing emphasis is on trans-
forming rather than restricting or isolating offenders; and responsibility
for change is entrusted to peer groups, rather than to professional treat-
ment and rehabilitation experts” (Brady 1977, 139). Instead of isolation,
the idea was exactly the opposite in this discourse—if the reader will
pardon my Trotskyism—of permanent revolution: offenders should be
included in the community, through work and social pressure, to contrib-
ute to its progress, “monitored” not by professionals but by lay activist
volunteers. Brady points out that the Cultural Revolution was formed on
the wave of protests against the conventional judicial institutions, such as
the police, prosecution, and courts, which had sided with party conserva-
tives (Brady 1977, 154). New systems of justice and punishment were to
erase all that sediments of bourgeois injustice.
In other words, in the totalitarian political movement of violence and
punishment, no bureaucrat or class enemy was to be spared. Justice of
legality was replaced by the direct reference to the ideology of the revolu-
tion paired with local fervor in societal reform and with different content
of justice than that of the Hitler’s regime but with a method not so dis-
tant, which was discussed on the basis of the Eichmann vignette in the
first chapter:
Roving security patrols, impromptu tribunals, and make-shift jails
were set up by hundreds of local rebel groups, sometimes in seized
buildings formerly occupied by the regular police and courts. These
new ad hoc justice organizations usually claimed to act “in accordance
with the law,” but in fact they ignored statutes and formal legal proce-
dures which they thought bureaucratic or unsuited to revolutionary
class struggle. Instead they cited general Maoist principles on “han-
dling contradictions” as the guide and justification for arrests, proce-
dures, and punishments. (Brady 1977, 155)
Brady romanticized this concept of justice developed by Maoism in its
historical struggles, linking to its realization “almost complete absence of
200 Chapter 3

drug addiction, prostitution, extortion and attacks in the cities of mil-

lions,” considering the success of this approach even more incredible in
the context of small numbers of Chinese police (Brady 1977, 143). This
conception of people’s justice accepted by Brady goes together with the
delegitimizing of Confucianism. Claims about social peace are altogether
lumped under the term of “official sociology” of the precommunist re-
gime “from the Ch’ing dynasty to Chiang Kai-shek”:
These rather common misconceptions point back to Confucian philoso-
phy and to social patterns idealized in pre-communist China. . . . How-
ever, historical facts, and particularly the social facts which describe
China in the decades just before Liberation, will not fit into this ap-
proved social landscape. Whatever “cultural peculiarities” may have
existed to promote tranquility and passive respect for order in old Chi-
na were not enough to counter economic and political pressures which
twisted and ultimately destroyed that social order. China before Liber-
ation was quite probably the most violent and crime-ridden society on
earth. (Brady 1977, 144–45)
Brady writes about extortion, gambling, prostitution, and the opium
industry organized by the mafia, linked with trade unions and political
power. The hell of crime was, in this narrative, not broken by a liberal
democratic judicial bureaucracy, essentially complacent with it, but only
by the hammer of popular justice. Members of the gangs were denounced
at the mass gatherings and sent for re-education. Of course, in spite of
overblown narratives on justice and punishment in China’s Cultural Rev-
olution, the institutionalized penal policy of “legal professionalism” was
not eradicated. The scenario was historically familiar, the one of institu-
tions that again stabilize after the energy of social movement has waned;
the situation returned to “normal” soon after the Cultural Revolution,
when the legal pursuit of justice was conducted through the conventional
bureaucratic organizations such as the courts, prosecution, and the po-
lice, and the Communist Party that is itself, vanguard or bureaucratized,
an instance that tends to eschew liberal division of power with repercus-
sions on punishment (but is still less energetic than the mobilized punish-
ing masses). Within the discourse of this several-decades-old enthusiastic
account I have extensively reproduced, the usual interpretation of the
Cultural Revolution as a “directed mob rule” is designated as a “cynical-
ly racist analysis” (Brady 1977, 150). But even if we accept that this model
of national justice virtually eliminated nonpolitical violent crime, we
should meditate a bit more about the amount of violence that has been
produced by a revolutionary people’s justice.
Due to bureaucracy in the widest sense as its target, as in Rancière’s
radical democratic philosophy, the model of people’s justice expressed in
the Cultural Revolution was not primarily focused on combating and
reforming violent criminals. It focused on the problems of corruption and
 Comparative Politics of Punishment 201

embezzlement, or simply the bourgeois “attitudes” that required refor-

mation, but it was also applied to violent crimes, with the idea of reedu-
cating rampant bullies into properly oriented revolutionaries. But at the
same time, people’s justice as penal policy produced political violence, in
the form of faction fighting, beatings, and executions in which ideology
was abused in conflicts of power and interest. Also, the “battle with
words,” which was intended to reeducate those who deviated from the
path of revolution, easily escalated into a physical maltreatment: beat-
ings, torture, and murder on the courts-martial of radical Red Guards
have become a mass phenomenon, which has sometimes escalated to
grotesque extremes. The basic model has thus produced a large amount
of public violence, which was politically guided but also eschewing con-
trol (this was part of Mao’s design anyway).
The dissolution of the state in the revolution of the revolution, in the
politicized crowd, could not be but short-lived, and in spite of the argu-
able reduction of certain crimes typical for routine of the industrial soci-
eties, the model obviously produced numerous violent side effects. Al-
though it is confronted with Confucianism in Brady’s account, the paral-
lel in highlighting informal control is obvious. The discourses of the Cul-
tural Revolution and Confucianism share something important, especial-
ly in terms of penal policy: as a method of social control, they ideally
prefer informal ideological indoctrination. In short, it is about what Lind-
blom in the 1970s, as opposed to the state and the market, carefully called
a preceptoral system, in which all the social relationships are managed by
the inculcation of a total ideology; instead of the force of a state apparatus
or voluntary exchange of the market, the key transaction is the elite in-
doctrinating the masses (Lindblom 1977, 52–62).
How extreme was this ideological program in practice, reaching for
the concrete bodies of the condemned? This case of manipulated mass
punishment—or, more conventionally, “state sponsored killings”—in an
idealistic reading fueled by Maoist ideology involves the predictable
gruesome lineup of instructed mobs, direct killings by the armed forces,
pogroms, witch hunts, and summary executions, with expectedly dra-
matic number of casualties (see Song 2011). Beyond dryness of taxono-
mies, there are curiosities concerning an ancient extreme art of penal
cannibalism, of “eating an enemy (most usually a foreigner but in some
instances a local wrongdoer)” appearing as both “a supreme gesture of
punishment and contempt” (Oliver 1989, 317). That is, along with the
beatings to death, stonings, and so on, acrimonious phenomenological
depictions of punishment in Cultural Revolution seem to pair the politi-
cal massacres with devouring of the bodies of the killed enemies—
cooked or raw, it is not specified, and the technological details such as
“Fijian cannibal forks,” depicted in the quoted anthropological bit earlier,
coming from Oceania with love, are to my knowledge left in darkness.
Although the shadow of doubt is cast over such literature as the Scarlet
202 Chapter 3

Memorial, written by a former Red Guard (Zheng 1998), and the story is
ascribed to intraparty conflicts and some nasty historical stereotypes (see
Schreiber 2014), the marriage between the class struggle and anthropo-
phagy in the Guangxi province during the Cultural Revolution, making
of this repugnant nutritive practice at least a possible local excess of
terror politically growing on the putative local tradition of the famished
Zhuang, is not refuted beyond reasonable doubt, at least to this devour-
ing prober.
Ideally speaking anyway, cannibalism was allegedly imposed as a
model by which the party leadership instructed the masses. The gro-
tesque practices were associated with Mao’s statements about the strug-
gle for life and death. Theoretically, they could be interpreted as a logical
consequence of the dehumanization of the enemy of the people. Histori-
cally and anthropologically, they do not seem so preposterous: bodies of
the enemies have been eaten and, as we have seen, the history of punish-
ment abounds with extreme practices, especially in extreme situations,
and the frenzy of the Cultural Revolution offered such a setting. Ritual
cannibalism can then be interpreted as an ideologically charged show-
down with the class enemy who, after physical execution, is also de-
stroyed symbolically. In sum, “in Mao’s China, cannibalism became a
tool for the punishment of the former ruling class, and for the reeduca-
tion of the erstwhile oppressed masses” (Várdy and Várdy 2007, 235). If
this extreme sounds a bit overblown, it is no less worth probing, calling
for the explanatory discourses of chapter 2. Even if discarded as written
in the genre of combative ideological fiction, as a hyperbole it in a way
still talks about what is important in this episode of violence and punish-
ment of excessive ideological indoctrination mixed with retributive pun-
ishment. It is a connection between ideology and penal violence that I
highlight in the next annotation, after answering the question why this
historical experience is important for the present state of violence and
punishment in China.
What is the point of this rather longish historical excursus? After all,
more or less capitalist China of today seems very far from the mood and
politics of the Cultural Revolution. Massive social and economic changes
have taken place. The narrative about penal history of China after the
Cultural Revolution takes a more conventional turn. The story is about
establishing a formal legal framework, almost with a hint of political
liberalism and the rule of law: “The rule of law did not exist in China
until after the Cultural Revolution in the 1970s. Since then, China em-
barked on an ambitious path to reform and reconstruct of its legal sys-
tem” (Li and Ma 2010, 36). The penal code and the penal procedure code
were promulgated in 1979, as well as the law on people’s courts; a series
of laws were passed in the mid-1990s, for example, on public prosecution
and the police. The penal law was amended on three occasions: 1997,
2002, and 2005 (Li and Ma 2010, 39–40), and so on. Against the grain of
 Comparative Politics of Punishment 203

African people’s wisdom, special juvenile justice frameworks were estab-

lished. Although for a number of reasons one does not need to take any
statistics for granted and much less to believe the official statistics of a
still totalitarian regime, as the changes stuck to the party’s monopoly to
political governance, the crime in China after the reform of the late 1970s
was on the rise (or, in any case, such was the record within the frame-
work of official statistics that was perhaps not as politically distorted as
before): “since China implemented its economic reform and open door
policy, the level of criminal behavior has been increasing. Official statis-
tics reported a 340% increase of total crime and a tenfold increase in
serious crime from 1979 to 1990. In 1978, the crime rate was 55.91 per
100,000; it reached 355.5 per 100,000 in 2005” (Zhang, Messner, and Liu
2008, 125). With the increase in youth and property crime, violent crime
increased as well: “According to official statistics, from 1978 to 2003 hom-
icide rates more than doubled, rape increased 30%, and assault increased
7.5 times” (Zhang and Liu 2007, 543).
However, the legal formalization of the penal policy and an increase
in crime that is sometimes associated with a thriving capitalist economy
did not fundamentally change the repressive system that combines the
two traditions, of indoctrination and repression, which were enhanced
and modified within the Maoist tradition of penality. The party and the
ideology are still there, as is the penal infrastructure associating forced
labor and reform, if not applying the death penalty. That the Maoist
tradition of penality still survives, beyond Chairman Mao’s lasting influ-
ence on the politics of the death penalty (Zhang N. 2008, 132), is perhaps
best illustrated by an example of the Chinese penal labor camps system,
which Harry Wu called “the Chinese Gulag” (Wu 1992). This system—
instituted by the party under Mao’s leadership in the 1950s, in which Wu
served his two decades for political nonconformism—consists of a series
of penal institutions. The forced reform labor system (Laogaidui) consist of
camps where convicts work (Laogai), camps for reeducation for petty
offenders (Laojiao), and forced labor of prisoners who have already
served their sentence (Jiuye), which continue to operate in the vicinity of
the penal camp (Wu, according to Liang and Wilson 2008, 246). 13 This
system still exists today, producing capitalist merchandise from slave
labor, paired with conventional prisons without such an economic di-
mension, still mixing political prisoners with violent and other crimi-
nals—an old totalitarian method highlighted by Hannah Arendt and oth-
ers dealing with the camps. Even if we take into account the objections
that are usually trying to turn the tables when some particular trait of the
system is discursively highlighted—that is, that the “old Laogai image” is
a thing of the 1950s and 1960s and that “due to uneven economic devel-
opment, varying political policies and cultural differences” in the penal
policy in today’s China is “locally driven” (Liang and Wilson 2008, 259)—
the same political model of punishment still essentially remains, even if
204 Chapter 3

we account for local forces and various formal facts such as the name
change from camps to prisons, or Laojiao being rebranded as “community
corrections centers.”
Where do we find ourselves at the end of this narrative of older penal
concepts and communist past and present? We might meditate upon the
dark reverse of the picture: the informal control, which is romanticized as
a Confucian wisdom, was adjusted by the Communist Party, which has
maintained a monopoly on political power. This would mean that totali-
tarianism, amplified by the ancient traditions upon which it builds its
policy, still persists, while the market reforms have brought wealth but
also subverted equality and undermined the party’s monopoly. In that
context, Confucian emphasis on subordination in the hierarchical rela-
tionship of master and servant (congshu guanxi) is used to support the
rule of the party over the whole of society. The legacy of the local govern-
ance in the so-called Baojia system of social mobilization, control, and
punishment, an institution dating as far back as the Song dynasty, is also
employed. Guided by the paternalistic Communist Party, which turns
from the mode of revolutionary movement to a more bureaucratized
organization, society is becoming like a big patriarchal family, with a
strong sense of hierarchy and collectivist sentiments, aided by the reani-
mated and adapted concept of collective (penal) responsibility (zhulian)
(Ho 2001, 72–73), of the general type discussed in the introduction. In
probing the extremes, we thus see an eclectic but functional mix—a (post-
)totalitarian party that combines formal and nonformal punishment, pub-
lic reproach with the anonymity of labor camps—a combination that
builds on the precommunist traditions of punishment and control, pro-
viding a good basis for the creation of political violence. Party monopoly
and its ideological baggage, along with a whirling economy that inevita-
bly brings the liberalization of society, could result in a penal policy that
produces more violence against politically subversive nonviolent agents,
instead of the one that would prevent brachial violent criminals in their
routine operations, brewing a social basis for the aestheticization of vigi-
lantism such as in the recent Touch of Sin problematizing structural vio-
lence in the country that has exchanged Mao for Maserati.
The final diagnosis is the eclectic penal cocktail, with discursive and
practical differences still in the shadow of the great Cultural Revolution,
and importantly deeper and more stubborn traditional penal layers of
spectacle, public shame, and family control beneath the bureaucratic ef-
forts to discipline the Chinese population (see Turner 1999, 248). Thus we
cannot but concur with the importance of history in charting the present,
as stated at the beginning of a venerable monograph about the subject of
“the complex history of criminal justice of China”: “An examination of
China’s criminal justice system in the past will tell us something about its
present and also prepare us for the future by highlighting the major shifts
and dynamics that produced and continue to influence the administra-
 Comparative Politics of Punishment 205

tion of justice in China” (Mühlhahn 2009, 1). And to continue this line of
thought, one shorter note about history is appropriate to end the “Far
East” section. Its drastic brevity is in disaccord with the gravity of suffer-
ing but the characteristics, similar to ones in the history of the Chinese
case, can legitimate its treatment at this point. Revolutionary ideology
worked as punishment and, in another way, it set the stage for the pun-
ishment in the present, with a touch of sin moving to the south.
Democide, a concept branded by Rummel (2009), has already been
introduced. A reasonable consensus is that Cambodia under the Khmer
Rouge qualifies for that label as well. If the Burmese situation, as por-
trayed in a last sequel of a famous franchise where aging Rambo and his
ad hoc mercenary companions wreak havoc on the Tatmadaw forces
offers an illustration of authoritarian violence and ethnic oppression
done by a military dictatorship, Cambodia (back then called Democratic
Campuchea) provided for one of the shorter but, measured by fatality,
one of the more prominent violent episodes in history of humankind. If
Rwandan genocide was more or less banal (and for that reason no less
horrific) ethnic punishment for being born different, this case in Cambo-
dia is a more complex project of ideological punishment for being differ-
ent in terms of class, framed as a reeducational movement to the country-
side. Pol Pot (who in the beginning of the 1970s was taking part in the
working actions of road building in Croatia, then still part of socialist
Yugoslavia), as part of revolutionary campaign to change Cambodia and
associated with the usual political purges and showdowns with oppo-
nents, launched a mass transfer of population to the countryside’s agri-
cultural or, better said, penal colonies. By working experience in the
country—sort of an imposed harsh secular penance for the sins of class
and history—a real, communist agrarian man was to be forged. This time
rumors did not refer to cannibalism as a transsubstantialization of class
enemies or bureaucrats astray to pure revolutionary energy, but to mur-
ders of the intellectuals whose decadent glasses might have brought them
death, showing a class aberration and historical distance from the healthy
work in the fields and with livestock, a bit similar to the ideological
explosion of violence in Spain within the opposing frameworks of Terror
Rojo and la Represión Franquista, which targeted intellectuals in their own
ways, in a country still divided by the historical traumas (treated in the
next section).
The Cambodian operation was fatal. Ideological–geographical reform
crushed the population. Estimates of the calamity range from one to three
million of those perished not through war but by the direct action of their
“own” regime (see Foucault 2001a, 798). The interesting thing to note in
this discussion of extremes in comparative present is, however, some-
thing a bit unexpected given the gravity of violence and punishment. It is
the fact that this kind of politically induced destruction among some of
the victims and/or their relatives did not induce a logical operation of
206 Chapter 3

retributive punishment, and not only because of political circumstances.

While the international bureaucracy, understandably concentrating on
elections and human rights, installed a Nuremberg type of trial, like in
the former Yugoslavia as a part of internationally administered transi-
tional justice and punishment, the older discourse did not believe it or
perhaps only found it to be an outward phenomenon, tolerated while the
real punishment lay elsewhere—namely, in Benjamin’s imperious dem-
onstration of destiny. Youk Chhang from the Documentation Center of
Cambodia, a surviving victim who spoke of the two million killed in an
interview for a Croatian weekly newspaper, demonstrated interesting
religious differences in understanding punishment that did not back
down in facing the magnitude of historical slaughter. He explained, “We
don’t have the concepts of repentance and forgiveness as Christians do.
We do not have a word for it in our language at all. As Buddhists, we
believe in karma. On the other hand, the fact is that the Khmer Rouge 30
years ago destroyed the country, destroyed any trace of intelligence, any
civic consciousness or criticism.” In fact, although those two million in-
cluded four members of his family—brother-in-law, sister, brother, and
brother’s daughter—who were killed in a chain of events after the broth-
er-in-law stole (literally) a cucumber, “during the dictatorship in the con-
ditions of omnipresent hunger,” Chang’s mother did not “want revenge
because she was a Buddhist.” 14
Was it the simple coldness of the world accepted by the soul, without
retribution, but also without a Christian magnitude of forgiveness that
expects from the individual subject—God or man—to take the gravity of
the world on his shoulders, while punishment is left to kings and their
secular politics? While these themes are further discussed in chapter 6,
the next section searches for penal extremes in a more secular setting. The
composite milieu of punishment, still not considered a periphery, a conti-
nent in the backyard of which I reside—Europe—offers some interesting
cases worth probing.

PENAL EUROPE UNDERNEATH THE UNION: NATIONALISM,

RELIGION, AND AUTHORITARIAN RULE AS DETERMINANTS OF
PENAL POLICY

A careful look from the distance may make us more aware of our ignor-
ance. Perhaps more surprisingly, the same thing can be said when our
neighborhood is exposed to more careful nearby observations. Stereo-
types and blank spots are present when our own backyard is in question.
Varying traditions of punishment and interesting subtleties emerge from
underneath the surface of a moderate and abolitionist image of Europe, a
community of nations that altogether appears soft on crime in global
perspective, or at least from American eyes veering across the pond
 Comparative Politics of Punishment 207

“looking for the caricatures” that “do capture an essential truth” and find
leniency of penal law and policy placed within the context of pacifistic
worldviews and naïveté concerning the usage of power, that is, “Eu-
rope’s . . . relative weakness” (Kagan 2003, 6, 31; 2008). For once, howev-
er, one must not turn to global extremities that make national and region-
al differences look unimportant—Beck’s toxic remark on the famous soci-
ology of fine distinction as all bourgeois measurement of nuances in the
fog of methodological nationalism that looks to states in order not to look
at the world applies here as well—but exactly to filigree distinctions
which can offer extremities of their own kind. Scotland, Ireland, and
Spain—three cases I have chosen to illustrate this point—show us that the
devil resides exactly in the detail. And that his genre is once again the
history of the present.
Scotland remained part of the United Kingdom after the 2014 inde-
pendence referendum, but it has built its political autonomy within the
United Kingdom in recent decades, notably after the 1997 devolution
referendum that resulted in the creation of the Scottish Parliament. The
paradox is intricate, at least in the writing of some Scottish authors who
have tried to show that punishment in Scotland worked as a device of
progressive distinction before autonomy had realized itself, enabling
punishment to conform to allochtonous pattern. If we accept this figure,
at least as an interesting hyperbole, the point is that punishment may be a
reservoir of positively interpreted nationalism. Unlike the grave tones of
Irvine Welsh’s Trainspotting, following a picturesque bunch of Edin-
burgh’s heroin addicts, an academic discourse presents Scotland as a
bastion of postwar progressive penal welfarism that stood the test of time
a bit longer due to specific factors of identity politics, only to crumble (or
at least to weaken) when the goals of the politically self-conscious collec-
tive have been partly achieved.
The story is as follows. Penal neoliberalism is not paternalistic but
cynically cold. Its discourse is one of autonomous individuals who can
choose to compete legally and make a profit or use illegal means against
the rules to achieve same goals. Some are persistent in making their ille-
gal choices, so they should be incapacitated, put out of the game they
have been obstructing. If the prisons are full, that may be a cost, but at
least the situation is better outside where life, limb, property, and compe-
tition are secured. The state should not act as a helping hand that under-
stands better than individuals what troubles them but should conse-
quently impose retributive penalties according to the rules and specula-
tive deterrent effects. Penal welfarism, however, is something completely
opposite. Its discourse starts from society and other forces that cause
some to do crime, so punishment should, in part but not so much that it is
substituted by general mechanisms of supportive social policy, be indi-
vidually oriented, working to cure the individual as a being of social,
economic, and psychological environment. The first position is ideologi-
208 Chapter 3

cally Right, the second Left in terms of class, economy, and society—but
not necessarily in terms of ethnic nationalism, which can theoretically be
associated with the second position, however impractical or unlikely that
might sound. Scottish authors try to show that this “extreme” moderate-
ness is possible when associated with striving for national distinction. For
example, McAra tried to explain the putative stability of penal welfarism
in Scotland by invoking various Scottish democratic traditions. She
thinks that “the problems of governance within Scotland were gradually
being articulated as a constitutional rather than penal crisis, with a resur-
gence of identity politics, growing pressures for home rule and increased
civil disobedience to unpopular policies” (McAra 2008, 292).
In other words, the story of punishment is political in a specific sense
of national tradition and (lack of) institutional autonomy. After the loss of
statehood at the beginning of the eighteenth century, democratic tradi-
tions in Scotland, in this interpretation, were preserved by the Scottish
Protestant Church (the Church of Scotland), referring to its bottom-up
control of the central institutions by individual congregations, and the
education system as another institutional reservoir of national identity.
McAra portrays Scotland as a country where democracy and national
identity flourish in civil society, with the strong presence of social demo-
cratic heritage of Clydesideism, especially at the local level (McAra 2008,
294). Despite social and economic changes, this political tradition is still
living and influencing punishment. It has been heavily involved in the
“penal culture” that promotes the mentioned penal welfarism, which
McAra defined as “principally rehabilitative in orientation, focused on
the promotion of both behavioural change and reintegration of offenders
back into the community; and predicated on the existence of a broader
political commitment to the advancement of social justice” (McAra 2005,
297). McAra concluded that “the Scottish system, unlike its counterparts
in the USA or England and Wales, has managed to absorb such chal-
lenges” since the “environmental pressures for change have been mediat-
ed by a number of localized political and cultural processes (relating
specifically to elite policy networks and the characteristics of Scottish
civic culture)” (McAra 2005, 285). McAra insists that postdevolutional
development has not abolished the described discursive currents. She
writes that “the evidence suggests that the Kilbrandon philosophy con-
tinues to thrive within juvenile justice in Scotland in spite of the incursion
of competing discursive forms” (McAra 2005, 288). 15 Of key importance
was the way in which “quasi-state” in the form of the Scottish ministries
and the elite public policy networks, which consist of the directors in the
system of social work, courts, prosecutors, and scientists, were able to
shape the field of expertise and meaningfully connect with the main dis-
course of “Scottishness” (McAra 2008, 493).
On the other hand, 1990 Scotland was besieged by a new penal policy
promoted by the New Labour Party. The 1995 Children Act put an accent
 Comparative Politics of Punishment 209

on the risk assessment rather than on the historical emphasis of the best
interest of the child (McAra 2008, 491). More punitive populist rhetoric
addressed questions of violence, and Scotland after the devolution was
affected by the “massive expansion of ‘architecture’ of criminal justice at
the national and local level. Indeed, over 100 new institutions were estab-
lished after 1998” (McAra 2008, 490). Alongside with changes in the basic
regulation, such as the 2003 Criminal Justice Act, which provided for
lifetime supervision for the most violent offenders and put the Depart-
ment of Risk Management in charge of implementing this policy, and the
2004 Anti-Social Behaviour Act, numerous programs and initiatives were
launched, ideologically backed with the well-known New Labour motto
of “what works” (McAra 2008, 491–92). It seems that in a kind of hyperin-
stitutionalization and policy fervor after the devolution, the Scottish pe-
nal policy was affected by numerous formal and substantive changes,
significantly changing the penal landscape of the country. The golden age
of the welfare state was ultimately replaced by more punishment.
In sum, Scottish authors claim that the more welfarist penal policy in
Scotland lasted a bit longer than elsewhere because of the “the distinctive
nature of Scottish civic and political culture—with its greater emphasis
on the public provision of welfare and mutual support” (McAra 2008,
493). In this narrative, identity politics and Scottish nationalism served as
a bulwark against a harsher penal policy because it was something
foreign, a somewhat odious English import that called for a distinctive
Scottish approach. Welfarism flourished because it could be Scottish, as
opposed to punishment, which was English. However, some caution is
needed concerning this narrative in simplified form. For example, Croall
in an earlier written text provides a bit less romantic view than McAra,
getting closer to the popular depictions of a rough and violent culture
and punitive repression such as in Anthony Bourdain’s gastronomic
travels to Glasgow. Rhetoric of punitiveness no doubt existed before dev-
olution, as well as the tradition of penal harshness. But even this account
acknowledges the impact of the Kilbrandon philosophy, taking into ac-
count a more personalized and holistic approach of the Scottish social
work tradition that remained alive. Croall concludes that “Scottish crimi-
nal justice policy postdevolution displays signs of both convergence and
divergence with England and Wales and wider global influences” (Croall
2006, 595, 601). As McAra, she notes the irony that the convergence
strengthened with the higher levels of Scottish independence (Croall
2006, 602). Although discourse is not reality, especially academic, this is
an interesting possibility to think about when probing the unexpected
possibilities: punishment as a good or bad side-effect of the wider politi-
cal forces of autonomy and integration. It is certainly an interesting
thought to toy with in a book being published in the aftermath of Brexit
with its foreseeable effect on the centrifugal politics within the United
Kingdom.
210 Chapter 3

We do not need to go far in our next step, only a bit to the southwest.
The excesses of washing are penance for the sins—or, in another dis-
course, a simple conflict with the patriarchal social norms where a girl
who is sexually liberal or raped is seen as desecrated. The ontology is as
firm as Catholic theology, the particular renditions and sympathies for
the characters put aside. For those still baffled, a mother superior ex-
plains the allegory: not only are the girls washing the clothes, they are
washing the stains of their sin. Men lack control, they succumb to tempta-
tion. They have a deficient or lacking ontology, archetypally explained by
the story of original sin. We cannot reasonably expect too much con-
straint from them. Thus, women must be modest and take the historical
burden of not tempting them. Evil, and sometimes violence, comes out of
women’s arrogance, from their self-love, which prevents both them and
men to choose freely between good and evil. On a more mundane level, it
is sexual exploitation and punishment within punishment, of symbolic
shaving, for example, or more corporeal birching within a setting that is
legally unclear but works efficiently according to the mores and customs
inside of a total institution at the apex of informal social control for the
younger and sometimes older women who spend their lives there. Ire-
land is our second case connecting history and present through the abol-
ishment of an arguably extreme parapenal institution.
Irish correctional homes seemed to be an extreme institution (certainly
more than the notorious sloping out of the Scottish harsh penality and
less than romantic prison conditions), or at least that is the stereotype of
them in retrospect, offered in popular culture, most notably in the 2002
all-Irish film The Magdalene Sisters. Although its postclaimer uses the usu-
al formulation that all the “characters were entirely fictitious,” it is also
sociologically based, referring to the population of thirty thousand wom-
en, mostly young girls, who passed through the so-called Magdalene
homes and to the fact that the last of these laundries closed in 1996,
although the laborious washboards in the film are pretty quickly comple-
mented with the centrifugal rotation of big green Irish washing machines.
The film holds the key to understand punishment in contemporary Ire-
land in Ireland and dispels the magic of formal statistics lacking interpre-
tation. Even if merely tens of thousands do not look too dramatic in
comparison to the several tens of millions of Laogai, Ireland’s demogra-
phy, albeit Catholicism and propulsive historic diaspora export, is tiny in
comparison to China.
In a short narrative, I present one of the possible interpretations of
punishment in Ireland. As already obvious from the former paragraph,
the country is especially interesting for me as a Croatian citizen since
these two nations share a few things, such as the history of emigration
and—all differences aside—a neighboring larger nation with historical
territorial claims and joint political histories (England and Serbia). And if
this is not enough and not directly important for violence and punish-
 Comparative Politics of Punishment 211

ment, the countries also share a high rate of Catholicism and alcoholism,
or at least the first was and the latter still is a widespread, seriously taken
social more (all Irish songs are drinking songs, remarked James Hetfield,
introducing a famous cover, and Shane McGowan would probably
agree). A growing interest for immigration formalized as asylum seeking
has still not hit Croatia to such extent as Ireland and some other Euro-
pean Union countries, but it is more so since Croatia became an EU
member few years ago and its geography on one of the migration routes
that has drastically intensified due to the chaotic events in the Maghreb
and the Middle East undoubtedly contributes to that during the writing
of this book. In the next part I present the conventional narrative playing
on emigration and immigration in explaining crime oscillations and then
turn to the hidden joker of the informal social control that is often omit-
ted from these speculations, suggested by the introductory vignette of
girls forced into the role of laundresses. Prison statistics should be taken
with a bit of commonsense skepticism. As the Irish case shows, a penal
landscape is a concept that is wider than prison. The extreme here is a
missing link of informal control that could, as in earlier passages, rise to
small extremes in form of physical punishment.
In the second half of the twentieth century, Irish society was marked
by downward trends in punishment and relatively low penal population.
To give a bit of elementary political context, Ireland gained statehood in
the early 1920s, which is associated with well-known episodes of political
violence. After World War II, the republic was declared, and the country
was finally admitted to the United Nations and, in the first half of the
1970s, in what was then the European Community and now the much
more ambitious and shaky European Union. Unlike the preceding disclo-
sure of the Scottish case, it seems that political emancipation in peacetime
did not directly affect the conventional penal policy. Until the 1970s, the
prison population was very low. In the early 1950s, there were five pris-
ons across the country—Limerick, Cork, Portlaoise, Sligo, and Dublin—
and one borstal for boys in Clonmel, and in the late 1950s two prisons
even closed their gates (Cork and Sligo) due to a lack of prisoners: the
total number of inmates (men, women, and boys) in the whole country
went below four hundred (O’Sullivan and O’Donnell 2007, 34). 16
From one of the poor countries with high emigration, within a few
decades Ireland has become a reasonably successful user of EU funds, to
the point that in the 1990s it was declared the “Celtic tiger,” a European
country with the rapid ascent similar to some Asian economies, even if
that picture was challenged with the recent world economic crisis. Along-
side these processes, the prison population began to grow. In the mid-
1970s, it exceeded 1,000 prisoners; at the turn of the millennium it was
about 3,000, and in early 2010s it reached around 4,300 inmates to fall
well below 4,000 in 2017, according to the official data available at the
World Prison Brief. Despite a long-term upswing, this still gives no dra-
212 Chapter 3

matic relative figure on the world scale of imprisonment: it is a comfort-

able average of about 80 prisoners per 100,000 members of the popula-
tion. This growth—associated with an increase in prison capacity, espe-
cially since the mid-1990s (O’Donnell 2005, 101)—went hand in hand
with a stronger politicization of the penal policy, especially regarding the
problem of violence. The penal turn in this central periphery offered a
familiar development, but what were its causes? “Rising violent crime,
especially homicide, has become a focus of media, political and public
concern, especially since the shooting dead in separate incidents of a
journalist and a policeman in June 1996. However, the contours of the
problems posed by lethal violence are poorly understood and their rela-
tionship to wider social forces has barely been explored” (O’Donnell
2005, 100).
On the surface, there was the usual cocktail of highly visible grizzly
violence and political folklore. As announced by the above quote by
O’Donnell, members of the IRA killed Jerry McCabe, a Garda Síochána
detective. Two weeks later, journalist Veronica Guerin was murdered in
a classic mafia liquidation. The created climate was described as “a text-
book case of moral panic. Public anger and anxiety were inflamed (as
shown by the opinion poll results) and a raft of legal and policy changes
was set in motion to clamp down on ‘organized’ crime.” Even “[t]he
Archbishop of Dublin told mourners at Guerin’s funeral that it was ‘time
to reflect on the drift in the direction of our society and to ask how it may
be halted’ (Sunday Times, 30 June 1996)” (O’Donnell 2005, 106). After
events preceding the national elections, the center-right Fianna Fáil “re-
defined itself as the party of law and order, a mantle that had traditional-
ly been claimed by Fine Gael (the major coalition partner)” (O’Donnell
2005, 106). A political atmosphere was created in which all politicians
knew that they should be tough on crime—a lot more than on its causes:
“Politicians engaged in a bidding war, promising more Gardaí, more
prisons and less tolerance. If returned to government, Fianna Fáil under-
took to ‘give the streets of this country back to the Irish people’”
(O’Donnell 2005, 107). This resulted in the expected paradox of more
punitiveness and stricter criminal justice and police work at the same
time when the overall crime rate was falling. In another expected twist of
events, the European Committee for the Prevention of Torture warned
about Irish prison violence and its “culture of abuse,” also criticizing the
nondeletion of misdeeds from criminal records after the offender’s debt
to society had been served, since it hampered reintegration (O’Donnell
2005, 123, 126). However, the question of causes still remains unanswered
underneath this predictable narrative, which may explain some rise in
penal statistics due to a politically induced crackdown on crime but still
far from a fuller and more convincing picture.
In the segment of our narrower interest, O’Donnell briefly outlines the
developments concerning violent crime, especially homicides, in Ireland.
 Comparative Politics of Punishment 213

Along with the claim that the murders were an urban phenomenon, by-
passing small rural districts, violence is linked to three factors: high pop-
ulation growth, which is not siphoned into emigration as it once was;
increasing alcohol consumption; and anomie resulting from major
changes in society (O’Donnell 2005, 113). One of the assumptions is that a
poor society with a high rate of emigration exports the marginal elements
who are held to be more likely culprits of violence. In short, in Ireland,
emigration has traditionally replaced crime:
Crime and imprisonment rates in the mid-20th century may have been
depressed by the emigration of large numbers of those in high-risk
groups, particularly young, marginalized, working-class men. An im-
portant aspect of migration is its selective nature and, in the past, an
element of the crime problem was exported. Sometimes judges gave
defendants the option of prison or the boat to England. As Russell
(1964: 146) put it: “An Irishman with criminal aspirations almost invar-
iably leaves this country and goes to England, sometimes voluntarily,
sometimes on the advice of the police or even a District Judge.”
(O’Donnell 2005, 118)
This mechanism implicitly offers an elegant explanation for the puni-
tive turn. If emigration reduces crime, immigration could, conversely,
increase it without any special dose of racism or xenophobia added:
many more subjects in the same-size ponds, and many of those who came
not integrated economically and socially. In the past two decades, as was
hinted, Ireland turned into an immigration society. Since the beginning of
the 1990s, the number of work permits issued to foreign nationals rose
from about 1,000 to about 40,000, and the number of asylum seekers rose
in the same period from “half a dozen” to 1,000 a month (O’Donnell 2005,
119). And that was before the “eastern enlargement” of the European
Union and the recent migration influx from North Africa, Middle East,
and the “’stans.” By the turn of the century, the frequency of violent
attacks on foreigners had increased. However, there is something more
interesting than this rather banal narrative, something that complements
it at least, making this country of European periphery, together with
Scotland, more interesting in our research: “In 1951, despite high emigra-
tion providing a safety valve, more than 1 percent of the population was
behind closed doors in prisons, borstal, reformatory and industrial
schools, psychiatric institutions (as involuntary patients) and homes for
unmarried mothers. This was eight times higher than in 2002”
(O’Sullivan and O’Donnell 2007, 27). This is an extreme fact worth prob-
ing.
When explaining a rise in crime and prisons, there is an intriguing
thesis that does not focus on a densely populated country, its economic
fluctuations, and its migration trends but instead highlights the weaken-
ing of social authoritarianism and a reduction in the array of various
214 Chapter 3

disciplinary institutions that, at least in some accounts, oppress the popu-

lation. In this narrative, punitiveness actually did not increase, but it has
changed and perhaps even reduced. Let’s look a little further at this
explanation we may politically categorize as one offered by the Left.
Ireland of today, the story goes, is a “heterogeneous country,” more pros-
perous than before, more secular, and with high internal and external
migration:
A rapid rise in prosperity, growing secularization and net inward mi-
gration (at an annual average of 25,500 between 1996 and 2002) created
an increasingly self-confident society in flux. The old certainties and
the deeply rooted deference for traditional forms of authority came
under profound and sustained attack. By the end of the century, the
venerable institutions of church (particularly the Roman Catholic
church) and State were severely bruised and had lost much of the
control and obedience that had for so long characterized their opera-
tions. (O’Sullivan and O’Donnell 2007, 31)
This statement has its empirical reference in a series of institutions that
began our story and that are somewhat forgotten in contemporary Ire-
land (O’Sullivan and O’Donnell 2007, 36–40). These industrial schools
were to “inculcate children with habits of ‘industry, regularity, self-deni-
al, self-reliance and self-control.’” Most commonly because of the poverty
of the parents, children were assigned to these institutions by decision of
the court. Six thousand children were the clients of these institutions in
the 1950s. Girls and women were sent to our Magdalene Homes, which in
the 1950s counted about 1,000 residents. To these reformatories run by
nuns, we should add the homes for mothers and children, which were
hardly more romantic, and the institutions of forced hospitalization,
which accommodated one of the protagonists of The Magdalene Sisters, a
good-hearted but feeble-minded suicidal girl crushed by the brutality of
fictional laundry penal convict. When this traditional version of what
Stanley Cohen called an extensive network of control (Cohen 1979) is
observed in the longer historical perspective, in the period from 1951 to
2002, one actually gets “The massive downsizing of the population in
coercive confinement: from over 31,000 (1,069 per 100,000) to just under
5,000 (126 per 100,000),” and the reduction of the range of institutions of
involuntary placement, which now exclusively operate as a part of the
state apparatus (O’Sullivan and O’Donnell 2007, 33). Punishment has
narrowed down to become business of the government. Its increase is not
ambivalent only if we exclude other arguable instances of punishment.
As the film informs the viewer, the homes that were founded in the
eighteenth century were closed. Their narrower mission to reform the
prostitutes through hard labor in silence, with physical punishment if
necessary—the name is a reference to Mary Magdalene, one of the few
Marys from the New Testament—was, as the film has also shown, broad-
 Comparative Politics of Punishment 215

ened to accommodate young husbandless mothers as well the mentally

retarded, in another Foucauldian great confinement, indeed, a gendered
one. And the confined were an extreme symptom of the country that had
a particular punishment style. Ireland in the 1950s, as displayed by
O’Sullivan and O’Donnell, is a country with “low formal crime, but high
perceived-deviance in the sense that contravention of social norms was
regularly met with an institutional response” (O’Sullivan and O’Donnell
2007, 43). It is a society where the police did not have much work to do
with violent crime. Its main agencies of social control were the vigilant
family members, monitoring violations of social norms. Within the dis-
course of sociology, one that could be labeled secular and leftist, Catholic
penance became the stigma that is imposed on the subject and sincere
regret that was “not uncommon for these individuals,” as illustrated by
The Magdalene Sisters, and their tendency to “internalize the public view
of their ‘wrongdoing’ and their sinfulness” resembled a “process of ‘sec-
ondary deviance’” (O’Sullivan and O’Donnell 2007, 43) and perhaps a
secondary victimization. Ireland of that time emerged as place of lowered
tolerance “especially for women and children who defied social norms,”
which fits into the theoretical discourse of the classics of sociology: “Per-
haps, in a Durkheimian sense, when the criminal law was rarely broken a
harsh response to other forms of social misconduct served as an impor-
tant means of norm enforcement” (O’Sullivan and O’Donnell 2007, 44). A
thesis on actual reduction of the quantity of punishment is also associated
with a claim about the reduced quality of authoritarian pressure: “Not
only were more people confined in 1951, they may have suffered more
than prisoners in 2002. In addition to a focus on discipline and labour, the
religious ethos of the day meant that the need to atone, or simply toe the
line, weighed heavily. The experience was deliberately stigmatizing”
(O’Sullivan and O’Donnell 2007, 44).
One of these 30,000 exposed to the Foucauldian workhouse discipline
of the monastery was Sinéad O’Connor, whose albums were publicly
bulldozed in Catholic Ireland, in an act of symbolic punishment of the
singer, a self-declared “three-quarter dyke” with a beautiful voice. Before
Benedict XVI “resigned” leaving the Holy See to the more punkish leftie
pope, she explained her symbolically extreme act of tearing the picture of
the Pope John Paul II, paired with the call to “fight the real enemy,” by
the fact that as a teenager she had been interned in An Grianán Training
Centre, one of the Magdalene’s laundries for eighteen months where, in
the basement of the asylum, she had to wash clerical clothes (in cold
water). 17 In October 1950, more than half a century ago, the then Irish
minister of justice Seán MacEoin declared, “In countries where religious
influences are weak, there is undoubtedly a great need for the services of
probation officers and psychiatrists. In this country, where the influence
of religion is very strong, our need for the services of these people is not
great” (O’Sullivan and O’Donnell 2007, 31). The minister was right, of
216 Chapter 3

course, since the discourses of social control vary across religions and
ideologies. But the times have changed and the net of secular disciplinary
institutions has displaced the older mesh of religious enterprises.
To sum up, in this extreme case, an alternative social history is sug-
gested to explain the present, not only in Ireland since similar institutions
existed and exist elsewhere. To this story about the forms of pressure and
control over the population that official history held under the rug, an-
other political twist is possible, at least ceteris paribus (it is I hope clear that
I treat the case more as a thought experiment than the real history and
sociology of punishment in Ireland, which would demand at least a spe-
cial chapter). The Right would, perhaps, in the same material recognize
the problem of the lost discipline and thus marshal additional arguments
that associate an increase in crime with the collapse of traditional forms
of authority (together with the migrant influx). What should in any case
be kept in mind is that this social control did not find physical violence as
especially problematic. The father in the film, who beats his children,
visits the home and the scene is instructive. A child born out of wedlock
was deemed deeply immoral and demanded institutionalization, al-
though beating someone wasn’t very unusual or problematic. Intolerance
toward social deviance probably went hand in hand with tolerance for
classical physical violence. The point is, once again, that what discourse is
mostly silent about might be what is important. In this chase, perhaps a
business-as-usual everyday patriarchy of corporal punishment and do-
mestic violence was accepted, even though the latter term was discur-
sively formulated only later. To paraphrase, the phenomena did exist but
it was outside of the truth. It did not have a name and was therefore
officially nonexistent.
Alas, Spain! Amphibian Rimland, the European periphery both to the
ocean and the Mediterranean, another country chosen even though there
are other extremes that could as well complete the short European lineup.
Authoritarian history, a strong ideological divide in the country, a past
that haunts the present, and a recurring and never fully realizable idea of
reconciliation bringing national unity make Spain a good choice. Most
importantly, it is this haunting past affecting violence and punishment
that makes the case interesting. True, the Iberian peninsula has perhaps a
more interesting case—A Night Train to Portugal was already mentioned
and there are intriguing (hi)stories about political violence as punishment
during Salazar’s regime, such as Cardoso Pires’s Ballad of Dog’s Beach—
but I will limit the story solely to a short croquis of the big fish itself. The
point of Spain as a case probed here both of today and during the author-
itarian regime—except that it bears similitude to Croatia, blessed with a
national ideological divide as well as with the Mediterranean Catholi-
cism—is simple and powerful, paradoxical and extreme. Contrary to
some intuitions, the authoritarianism does not rely excessively on prison,
while democracy often does. The forms of social control and relations of
 Comparative Politics of Punishment 217

order and violence are different. To keep in obedience is to kill and instill
fear; one resorts to jail for torture and degradation in circumstances of
authoritarian rule but does not need large disciplinary or containment
prison. Prison is the penology of those reluctant to use force. In this, the
last vignette of this chapter, I connect the past of this interesting country
with its present.
Let us start with some statistics. During Franco’s dictatorship, the
prison population was comparatively low. In the beginning of the 1950s,
the number of prisoners fell to 15,000 and, with some significant fluctua-
tions in between, Franco’s dictatorship ended with roughly the same
number, 15,000 persons in jail. In the liberal climate of postauthoritarian
celebration, the number fell below 10,000 (Barberet 2005, 352). But then
something interesting happened in a country, soon to be admitted to the
European Community, as it was building a pluralist democracy. The
number of prisoners began to grow steadily: to 30,000 in the 1980s, to
40,000 in the beginning of the 1990s, and then to 45,000 by the year 2000.
It then surged to more than 75,000, reaching an average rate of 160 pris-
oners per 100,000 in 2010, to roll back a bit in recent years, as shown by
the World Prison Brief.
Spain is comparatively interesting because for almost forty years,
from the victory of the fascist forces in the Spanish Civil War to the
middle of the 1970s, it functioned as an authoritarian regime, geographi-
cally a part of Europe, but politically far from West European liberal
democracy and its penal dynamics, as far as one can speak of such a
thing—an anachronistic sovereign, pardon my Whiggish, ruled by the
mercy of God. Francisco Franco, the Caudillo de España, por la gracia de
Dios, used the death penalty, harsh (but not necessarily mass) imprison-
ment, and practiced torture of the political opposition. Prison can mean a
jail of torture for some or a place of mass incapacitation for the many. As
in Guillermo del Toro’s Pan’s Labyrinth, where the symbolically salient
figure of Falangist officer Vidal, overly tidy and fanatical, tortures and
kills the republican guerilla rebels and those who dare to soothe their
pain, such as euthanasia-friendly doctors, the regime offered the first
model.
Punishment typical of sovereign power was arbitrary in the sense of
certitude offered by the modern ideal of penal law, but in a way political-
ly predictable. Imprisonment for enemies—all those who undermine
sovereign’s power—went in hand with general amnesties for the crimi-
nals, which have kept the prison population at low levels. The new re-
gime was committed to distance itself from it:
Franco’s criminal justice policy was arbitrary and discretionary: it de-
livered severe punishment along with general amnesties. By contrast,
the criminal justice system of the new democracy was avowedly less
severe, but more rational and efficient. Political democratization had
218 Chapter 3

the effect of eliminating arbitrary features present under the Franco

regime which had been sources of uncertainty as to whether a crime
would be punished: for example, the 1978 Constitution prohibited
mass commutations of sentences, and in various other ways law en-
forcement discretion was curtailed. (Barberet 2005, 351–53)
In the process of democratic transition in the 1970s lingering into the
1980s, the emphasis was initially placed on the protection of the rights of
subjects and to the respect of prisoners’ rights: “The sympathy that the
aftermath of Franco’s dictatorship aroused for offenders, and the result-
ing defence of the rights of the accused in the 1978 Constitution, means
that Spain has perhaps favoured offenders’ rights over victims’ rights
and services—despite the more than 800 victims of Basque violence since
1968 and most recently the 192 killed and more than 1600 wounded on 11
March 2004” (Barberet 2005, 345). Penal liberalism has not been long
lived. As has been noted, democracy was a tumultuous period of change
for penal policy. The penal code was amended and changed more than
forty times before 2000, in order to undergo further changes after 2000 in
which higher punitiveness crystallized together with pronounced “politi-
cization of crime and justice” in the political arena (Barberet 2005, 351,
359). Nonpolitical street crimes have become a political issue, almost as
the Basque terrorist efforts who once made simple street attacks, robber-
ies, and killings politically invisible.
As a consequence, especially after the penal reforms in 2003 and 2004,
there was an increase in prison population but also the increase in the use
of stricter and alternative sanctions such as community work, introduced
by the Penal Code of Democracy of 1995 (Código Penal de la Democracia),
bearing a name soaked with historical irony. Drunk driving and domestic
violence became more strictly penalized (Blay 2008). Especially during
the two mandates of the right-wing government of José María Aznar,
penal policy became stricter, within increasing penalties in cases of multi-
ple recidivism and other infractions. A bit similar, at least in rhetoric, to
the American three-strikes laws, the purpose of the reforms, in the lucky
phrase of Prime Minister Aznar, was found in “physically removing the
most serious offenders from the streets.” While it was a natural thing to
do for the rightist government, the Left in Spain was worried because the
antiglobalization protests were discursively equated with ETA’s (the Eus-
kadi Ta Askatasuna, a Basque separatist organization which declaredly
disarmed itself in 2017) terrorism, by drawing the analogy with the street
fighting of Basque nationalist youth (called kale borroka), which, among
other things, included vandalizing the headquarters of the Spanish politi-
cal parties and throwing Molotov cocktails. Public concern for insecurity
was, if we follow the narrative offered by the Left, also instrumentalized,
used to deal with political opponents of the financial and economic inter-
 Comparative Politics of Punishment 219

ests of “big business.” Discursively amplified penal turn in the 2000s thus
crushed everything beneath its feet:
There would seem to be a spiral of amplification here between com-
mon-sense expressions of anxiety in the face of violence, the continual
reiteration of a certain dominant frame in the media representations of
the problem and the promises of responsible authorities to take stern
action. These provide a good stage for the performance of the zero-
tolerance strategy: the war against crime, war against unsuitable peo-
ple, the reconquest of public space, urban pacification and the expul-
sion of deviants. (Rivera Beiras 2005, 178–79)
On the political Right, there was also an attempt to attribute the ter-
rorist attack in the Madrid subway—which, with almost 200 deaths and
due to global political situation, had strong resonance throughout the
world—to ETA and thus gain political profit. The fact that this was not
realized aroused hopes on the Left to “recover a more rational discourse,
and thereby to escape the possibility of a new Holocaust” (Rivera Beiras
2005, 180–81). In Spain, of course, there was no Holocaust, but an argu-
able punitive turn in democratic Spain was not just a policy of the politi-
cal change in government but a general political trend that did not skip
subsequent prime minister’s mandate. “Small increases in crime have
been used as political weapons by the opposition party of the moment”
(Barberet 2005, 359), irrespective of the proclaimed ideological profile of
the party. This upward trend in stricter penality and growth of the penal
population exemplified the interesting penal paradox that was, I believe,
not primarily caused by the opening of the closed society, transitional
turbulences, and immigration pressures with their reflections in punish-
ment. The story was political in a sense of the system of power. A plural-
ist democracy discovered a new penality, blending harmoniously into the
theoretical framework that is sketched further in chapter 4. The paradox
is the following: an arbitrary and authoritarian regime that terrorized and
tortured political opponents was intense, but not extensive in terms of
punishment. Its grip was not in great quantity, and its discretion easily
solved problems of prison overcrowding.
“Rationality and efficiency” of the democratic criminal justice system
certainly changed quality of punishment and, for good or bad, also in-
creased its scope. What Spain shows is that the sovereign power may be
brutal, especially to its political opponents, and also that the consolida-
tion and discipline of criminal justice (which may be more lenient in
terms of penal violence against the body, which is in authoritarianism
also left to its “private” agents doing the family and street beatings in
society) has a wider reach and punishes a larger scope of population. The
spectacular murders, regicide, and quasi regicides from Spain—like the
one in December 1973, when an ETA bomb blew up Admiral Luis Carre-
ro Blanco, the prime minister and key person of the Falangist mili-
220 Chapter 3

tary–political oligarchy, who was, presumably, to replace the ailing dicta-

tor Franco—have become a thing of the past. Terrorist attacks of later
times do not target the body of the sovereign, who is in a historical and
politico-theoretical sense seriously shaken (but far from being completely
knocked down; see just below), but instead aim for a multitude of the
population in global struggles. Instead of cars flying up to twenty feet in
the air, accompanied by political lampoons “Up with Franco! More than
Carrero Blanco!” little thugs and undisciplined bodies increasingly ended
up behind prison bars or under supervision.
There is one caveat before completing this meager picture with some
recent Spanish developments: sovereignty is not dead, at least not yet. It
may work through other means, using legislation to expand power and
silence dissent. Spain’s recent controversial Law on Civil Security (Ley de
Seguridad Ciudadana), disparagingly called a gag law, is one illustration
of the continuity of the problems of violence and punishment. The ruling
elite discursively calls for the safety of citizens, and even speaks about
greater freedom and peaceful coexistence, when introducing penalties for
various events on the verge of folklore of usual political demonstrations.
However, the political point of these moves, the expansion of police pow-
ers, and the relocation of penalizing process from the judicial to the ad-
ministrative sphere, in the context of a political struggle, is to reduce the
space for protest, render it harmless and “saccharine,” and create a pre-
sumption to curb it repressively. It is also part of a broader package of
penal policy reform whereby, in a wider perspective, trends in the pro-
liferation of punishment will easily be traced back to the Zapatero period
and earlier (those defending the Ley Fernández will warn that the social-
ist Ley Corcuera 1992, named after the then minister of the interior, also
increased police powers).
As the case shows, penal history is something that needs constant
reassessment to understand the struggles and developments in the com-
parative present, imbued with echoes of political history. In the end of
del Toro’s film, Vidal is surrounded by the rebels and killed. As a last
wish, he only seeks patriarchal dignity, which is exactly what was denied
to him. His son won’t know his name; a midwife who brings the country
through the labyrinth of political evil ensures that. Another film of the
régisseur who is coming from violent Mexico, a country marking the be-
ginning and the end of this chapter, is, in his words, also a political
parable and a prequel to Pan’s Labyrinth (see Kermode 2006). It perhaps
offers better clues than this move that, in erasing history, not only under-
mines justice with a noble lie but is pragmatically unsound. The Devil’s
Backbone offers gothic, Goya-ish darkness. Speaking on the level of politi-
cal metaphor, it portrays Spain as an orphanage haunted by an ominous
ghost, sleeping on a fascist bomb.
 Comparative Politics of Punishment 221

CONCLUSION, CONTINUITY, AND CHANGE: SOME GLOBAL

FORCES AND LOCAL DEVELOPMENTS

After all, why a comparative politics of punishment? The question is not

so silly in the end, since globalization of technology, the economy, and
some other things (starting with communication) are quite ostensible: is
there such a thing as a global penal policy opposed to these intimated
comparative extremes? Regional integration projects, such as the Euro-
pean Union, especially after the Treaty of Lisbon as its surrogate constitu-
tion, offer some convergences both in material and process matters of
penal work, albeit the fragile legitimacy in extreme situations tends to
undermine these developments against stubborn national traditions and
policies of punishment. Or, at least, are extremes rather to be found in the
extreme ease of travel and application of the same around the globe?
“Static” differences in our comparative garden of penal species, a tidy
botanical exhibition in the classicist style, may catch an eye but the ex-
treme may actually lie in the smooth transfer of policies and penal con-
cepts from system to system, whether it is dealing with violence or a
blueprint for political violence. Torture techniques from the next chapter
seem to travel with ease, and convergences stemming from the applica-
tion of same policy and technology across nations are observable in spite
of differences. A global perspective dealing with such issues would war-
rant a special chapter as a counterweight to the comparative probing
attempted here, but the size of the book and already available competent
coverage of these themes within an academic mainstream of punishment
scholarship (Simon and Sparks 2013) convinced me that such a chapter
would be more of a further excess than a gain, although some interesting
and arguably extreme things are not lacking in that genre.
Suffice it to say, very briefly, that various developments having to do
with the conjunctures of punishment that may be called extreme also
proved fertile for various explanations in the style of the historical chap-
ter. I provide three examples putting them within disciplinary frames to
make the story tidier, not necessarily in line with disciplinary affiliations,
identities, or careers of the authors. First, political sociology paired with a
genealogical narrative sketched the extreme nature of the penal turn from
modernist bureaucracy to conservative penality, associating it with soci-
etal and cultural change in the late modernity (Garland 2001). It is a
narrative that we use in chapter 7, sketching the discursive field of crimi-
nology. Along with political sociology, one may speak of a political sci-
ence of governing through crime. It speaks of an intrusion of penal policy
deep into societal and “private” niches, structuring interaction and re-
placing free and equal citizens with victims and perpetrators, not always
advancing freedom but as an impairment to democracy (Simon 2007):
schools, families, and workplaces have not only become more toughly
scrutinized to unravel the unseen victims suffering in silence but the
222 Chapter 3

places of penal hysteria and witch hunts where tough policies produce
new victims and clients for the insatiable penal machine. Note that both
of these narratives are not at all constrained to the United States and the
same goes for our final example.
If the heuristics of the culture of control and governing through crime
are not enough, there is another grotesque and eclectic monster operating
within the genre of political economy: a centaur showing human face to
higher classes and stomping its feet on the precariat and the underclass; it
is a leviathan punishing the poor. These are the imaginative metaphors
employed by Bourdieu’s shining pupil describing a neoliberal penal state
that operates on the basis of an extreme social etiology of crime, almost as
in Gorky or Engels (see chapters 6 and 7). The poor are plunged into
crime by cuts on social security and then repressed with the masculine
muscles of a penal policy parade that ends up with another extreme—
overfilled prisons (Wacquant 2009). If social and penal policy are two
faces of the same coin, as Wacquant insists, or perhaps inseparable faces
of a more complex, multifaceted set of state and international policies,
then the outcome is logical: fewer social and economic rights, transfers,
and programs breed more crime for our still-hungry penal machine, prof-
itable for particular interests, which ends up with a plus-size model state
instead of a slim night watchman protecting property for economic com-
petition to produce profit for all. These are only several glimpses about
violence and penality that today appear within the contradictory and
shifting trends in the late penal modern of “volatile and contradictory
punishment” resembling Brundle, half-fly/half-human from Cronen-
berg’s 1980s classic horror (O’Malley 1999).
This then opens space for the mentioned “humonetarianism”: if it is
expensive, maybe we should go for a penal diet, even though we might
not care that much for prisoners’ rights (Aviram 2015). However, since
these extremes of political economy, culture, and politics still do not can-
cel out the differences as shown by the mere facts of the chapter, we
should here return to our comparative beauty pageant and offer some
chapter conclusions, based on a few more but still not enough observed
cases.
Due to the shortage of space and the lack of ambition to become a
comprehensive lexicon of the world’s punishments, discussion within
this chapter did not treat some important extremes. In a wider environ-
ment of the last section: Russian prisons or prisons of the former Eastern
bloc with still inflated imprisonment rate in comparison to Western Eu-
rope seem to deserve treatment within the probing of extremes. Luka-
shenko’s Belarus, an old-style sovereign power still using the death pen-
alty in Europe, and also Switzerland, with a republican tradition of carry-
ing arms that can be seen in daily life and killing sprees that erupt in
challenge to the peace and idyll of a rich conservative society, far away
from ideal of zero crime rate (Eisner and Killias 2004), offer different
 Comparative Politics of Punishment 223

extremes. The journey could continue farther: African countries or India?

Or the Americas? Crucifixions, for example, in an Ecuadorian jail, as a
grotesque and symbolically effective protest in the form of self-sacrifice
in Guayaquil’s penitentiary, La Penitenciaría, altogether interpretable
within the catchy theoretical frame of “the Cross Politics of Ecuador’s
Penal State” (Garces 2010); symbolic Christological punishment still
works today in some contexts as a cathartic representation and a message
to society of those secondarily victimized by the injustices of the penal
system, especially by the extreme detention in terms of its conditions and
duration, mocking any reasonable notion of the due process. Both pun-
ishment within punishment with a bit of protest, a drop of self-immola-
tion, and perhaps a bit of exomologesis for yet another extreme.
Or if that is too flamboyant, extravagant, and perhaps even superfi-
cial, an extreme that is simple, humiliating from the point of civilizational
standards and discourse of human dignity governing moderate penalities
of the epoch, can serve the purpose of illustrating the missed extremes of
today. It is anyway almost a prime-time household currency not func-
tioning in terms of center–periphery distinction. Sexual victimization in
American penitentiaries is a common place of popular culture. Whether
one prefers Oz to Prison Break, or any other penal soap opera, is of less
importance. They all have it. This informal punishment of the bodies and
souls of the inmates is de facto tolerated as part of the inmate ecosystem
loosely structured by Foucauldian discipline and governed by the mo-
ments of darkness and social order within. Traumas, barbarian disgrace,
and so on: appearing as a goal on the radar of the policy makers, gaining
visibility on the extremes that challenge the usual norms and borders, in
the cases of especially vulnerable transgender subjects such as Passion
Star, “a transgender inmate at the Barry B. Telford prison complex in
New Boston, Texas” physically male and treated as such by the bureau-
cracy, but feeling and behaving as a woman and treated as such by other
prisoners (see Sontag 2015). PREA, the acronym for the Prison Rape Elim-
ination Act, is an attempt to weed out that extreme.
Anyway, that said in place of much more that could be said, and in
hope that this idiosyncratic digest was illustrative enough and at least a
bit representative, the idea of this chapter was to stand back a bit and
wonder before the modern Babel, a figure of diversity, misunderstand-
ing, and conflict, which is going to end this story seeking redemption in
the world of violence and punishment. The stance of a comparativist
should be the one of a careful stranger, a humble figure exposed to the
processes of experimental acculturation that is at the same time sensible
to subtleties of culture and language, and their gestalt switches (“Wow,
this suddenly makes sense!”), and skeptical to mystifications that might
lurk there (“To say it’s a part of my culture is a lie, or an easy way out!”).
Numbers are excellent and one should use them but the stranger who
becomes comfortable should not forget to go thick and, on the normative
224 Chapter 3

level, forget that things work in the usual way, that is, some things he
chooses to call good might not cause results subsumable under the same
name, and vice versa, bad might not cause bad. As in the penal colonies
being an experiment of the past, these various peripheries have tried to
probe some extremes present in the world of unhappy families, defined
by the differences of their coping with violence and rationalizing punish-
ment (see table 3.1 for the results).
If I should by force or violence single out one general point of these
particularities, which one would it be? There is nothing outside of text, or
the text encompasses more or less everything seen and thought about;
this may be an ideology of petty teachers, defied by the complexities of
experiences, practices, and Chesterton’s foliage, but there is a ring of
truth to it. The key point is that the same may be different, and different
may be the same. The bones are broken, the body is dead and often
mutilated, but the discourse is different. Various policies rationalized by
various texts lead to the “same” outcome—subtle difference perhaps and
a lousy comfort, but very important. Small numbers of prisoners may say
next to nothing about important facts concerning social control and pun-
ishment, and the same goes for the exact method of execution. Authori-
tarian sovereigns may empty prisons, or they may be filled with detai-
nees. Hanging drug traffickers is the same, drugs may be the same, but
reasons may be different. The approach is then as in that of case law:
looking for discursive details of the case, argumentation of the sentence
and of the involved parties to extract the meaning of the policy, institu-
tion or act, and the function associated with it—why chop, why eye, why
prison, why public rituals of punishment, why shaming, why social
work, why laundering, and so on.
The secondary point has to go beyond the logic of this chapter, con-
necting it with the former and also the one that follows having to do with
the dynamics of power and punishment. Comparative politics of punish-
ment may be static, working with a series of snapshots in a given mo-
ment of time, demanding amendments every now and then without giv-
ing a reasonably stable account of where they are coming from. This is
cured by adding some path dependency—some history when we cannot
foresee the future. In explaining this point, I cannot help but add just a
quip about another case, perhaps one of the most interesting and most
important in the world today, which sounds like a good enough excuse.
It is, of course, the case of Turkey, connecting Europe and Asia, West and
East, Islamic and secular, the extremes of political violence and punish-
ment both in history and present. This point, then, is about change.
The prospects of Turkey entering the EU have always looked slim,
even if the EU becomes a less glamorous foreign policy target for tradi-
tional aspirants. Turkey’s long process of accession is for now one of bad
infinity, postponing the entrance indefinitely, while its membership in
the Council of Europe, its subjection to the Strasbourg Court jurispru-
 Comparative Politics of Punishment 225

dence, and visits in the name of the Committee for the Prevention of
Torture, profile a significantly more brutal and repressive criminal justice
and police apparatus than the European average. Traditionally, one may
sketch the following picture. The controversial Young Turks sought to
redefine the polity from an oriental empire to a modern Western nation.
Whatever the legacy of the three pashas, resembling a bit the three mon-
keys from the last chapter, Mustafa Kemal, who did not quite like them,
went much further in that process of transformation of the country. Secu-
larly sacralized as Atatürk, with a big mausoleum in Ankara, he dis-
tanced life from religious historical discourse up to the taking of new
names and surnames denoting banal things (such as firelighters or
springheads) among the population. If names are important, it was an
attempt to radically redefine everything. From that point on, it was secu-
lar modernism backed by military clashing with revolutionary radicalism
of the Left and the discourses of Islamic traditionalism for the definition
of the country, creating patterns of political violence and punishment.
Falaka (beating the soles of the feet), electricity, various torture methods,
and the police shooting of protesters—this is the folklore of violence and
punishment in Turkey. Add in, of course, the Kurds and ethnic divides,
usually stronger and more primordial than the ideological divides within
the ethnic-national body, even if the first is sometimes sublimed in the
garb of the second.
A long history of military coups seemed to have cemented the place of
sovereignty in the army, which was a Schmittian keeper of the constitu-
tion. With all secular reduction applied, the concepts of political theology
work in this case: the one of sovereign as lex animata, the living law sent
down from God to men (Kantorowicz 1957, 135) seemed especially inter-
esting. The army in that sense was a collective force that politically con-
served and reanimated a legacy of father of the nation whose name reso-
nates in the wailing voice of Âşık Veysel. It was an institution of living
law and force. Like kings in the Middle Ages, the army was “an eternal
savior,” to paraphrase Perihan Mağden, a writer and an activist against
compulsory military service in Turkey, a country with no formalized
institution of conscientious objection, punishing those who do not want
to bear arms, which is a traditional freedom that has blessed American
citizens since the federal Constitution and its amendments dating from
the times of colonial militias and the odious Redcoats but still cited today
by rock stars touring abroad, claiming that the death toll in Paris’s Le
Bataclan in December 2015 would have been lower if the crowd had been
armed.
In that order of discourse, today’s Turkish sovereign was imprisoned
for publicly transgressing taboos of the secular state and could not run in
a campaign before legislation was changed. Recep Tayyip Erdoğan did
not quite receive a Thailand-like lèse majesté sanction, where up to fifteen
 226
Country Example of Ontology Discourse of Discourse of Extreme
Punishment Punishment Explanation
Saudi Arabia Public death by Fearful subject Sunni Sharia, Religion and Routine of
decapitation hudud feudal rental execution
autocracy
Iran Abandoned Justice as Shia Sharia, Religious Retribution as
retribution and inequality quisas, and punishment, mutilation;
tariff of diyya dogmatic inequality
compensation discourse
Israel Imprisonment Collectivities State of Prison as ghetto Extrapenological
of the Arabs; and identities exception; of ethnic ethnicity of
private prisons; punishment as democracy punishment;
political public execution as

Chapter 3
violence prerogative vigilante
punishment
Singapore Death, stick, Fearful Law and order Colonial heritage Cumulation of
fine; symbolic individual as a and punishments and
mercy of the pillar of order authoritarianism a busy hangman
sovereign
China Excesses of Class: Bureaucratic Ideological fervor Excesses of
public bourgeois and inertia of and atomizing public punishment
punishment; proletarian revolutionary capitalism and working
death penalty moment camps
and working (reeducation in
camps the preceptoral
system)
Cambodia Ideological Class: Reeducation at Ideological mass Excesses of mass
democide bourgeois and the countryside murder public punishment
proletarian
Scotland Correctional My nation right Holistic Paradoxes of Nationalism as

Comparative Politics of Punishment

holism and or wrong rehabilitation; political (non) punishment
prison cruelty prison as autonomy
retribution
Ireland Religious Temptation for Expiation and Social control Excesses of
correctional the sinners reformation and migration transferred
homes; patriarchy in
punishment closed institutions
within
punishment;
punishment
and
immigration
Spain Imprisonment Mercy of the Death, torture Authoritarian Low imprisonment
and mercy; sovereign; and mercy; leanings in in a repressive
political police state control of the historical context system
violence unrest

227
228 Chapter 3

years in prison are provided for insulting the members of the royal fami-
ly, since the king and his kin enjoys constitutional sanctity and, according
to the prime minister, a majesty is not in position to explain or complain
(like, for example, a fishwife at the fishmarket). For reciting a poem in
1997 with combative religious metaphors—mosques as barracks, mina-
rets as bayonets—Erdoğan served four months in prison of the ten he
received under the then penal code and the practice of its application.
This penalty for “incitement to hatred” went together with political resig-
nation and a temporary disenfranchisement in terms of passive electoral
right to be chosen in parliamentary elections. After the ban was lifted,
Erdoğan became the prime minister in 2003 and president in 2014, a true
sovereign. In a country that is about 100 percent Muslim, mostly Sunni, a
booming economy with a new spending class and geopolitical ambitions
of both soft and hard power (regional, especially on the Balkans and in
the Middle East, and ultimately global), punishment cannot be and is not
the same like it was, nor is violence. This change of politics suggests a
change that may, again, demonstrate deeper continuity. Let me illustrate
that with a fictional example.
About a dozen years passed between the publication of Kar (Snow)
and Kafamda Bir Tuhaflık (A Strangeness in My Mind, a piece of Wordswor-
thian romantic melancholy already in the title and its epigraphs), ac-
claimed works by literary Nobel laureate Orhan Pamuk. The first one is
the story of return to the small city of Kars in the eastern periphery of the
land. It seemingly catches everything of our interest here: a history of
endless tyrannies, slaughters, and insurrections; the clash of Kemalist
modernization and pro-West secularism with traditional Islamic orienta-
tion, being pro-East; the clash of Atatürk’s panama hat and a fez; the role
of army in political legitimacy (to sit in the official fauteuil, one must
endure beating by the state, that is, the army, and with patience, writes
Pamuk); the taboo of the Armenian genocide that appears on the margins
of discourse as it appears historically, exactly with shrinking of a multi-
cultural empire to a smaller nation-state; and so on. Pamuk’s newest
novel is also a strange love story and an intelligent social and political
diagnosis, but mostly set in Istanbul as the biggest and most historically
and geopolitically important city whose conquest, together with the con-
quest of paradise on the other side of globe, set the new era symbolically
and ended the medieval order of things. It is, in the words of the Nobel
committee, again “the quest for the melancholic soul of his native city”
that gives another picture of rising consumerism and Islamic nationalism.
Erdoğan’s words now seem perfectly normal. Mevlut Karataş, a good-
hearted boza seller, witnesses more than forty years of change of his city
and country, where the army as sovereign in a somewhat chaotic setting
was replaced by authoritarian president and Islamism as ideology of the
ruling elite, strange to the narrating subject, a modernized citizen of Is-
tanbul. Violence against women, abused far away from the formal insti-
 Comparative Politics of Punishment 229

tutions that ignore their pleas, a pillar of the developmental patriarchy

politically lead by Erdoğan’s AKP; and authorized or tolerated deadly
violence against journalists, incurable performers of lèse majesté such as
Hrant Dink—those are the practices of punishment that fit nicely into this
picture of a political order consolidating its power. And, finally, a failed
coup d’état happened after the first version of this manuscript was com-
pleted, as strange as Wordsworth’s Prelude and the atmosphere of the
conference held at the end of 2016 at Columbia University, on Turkey as
one of the “global hot spots,” with a seemingly childishly naïve laureate
writer in the middle of it, resembling the boza seller protagonist in his
apparently disinterested ability to convey societal change and political
conflict. The story fits perfectly into this vibrant mosaic of order, violence,
and punishment.
It is a history of the present of older discourses waking and returning,
producing new bursts of political violence and treating new subjects with
punishment, but it is also the subject of other chapters of this book, the
case having to do with generalities of power and religion. The point is,
however, not to be afraid of the future, at least in the efforts of analysis of
violence and punishment. The point is that things suddenly look differ-
ent. Obama’s era has brought an end to the monolithic talk on strict
punishment (Green 2015). Talking about black and Latino men in prison,
costs of imprisonment, drugs, and harsher penalties, with absolute num-
bers rising from half a million to 2.2 million, from the position of the
formal sovereign, however awkwardly and uncertainly when the real
effects are measured, Obama’s presidency brought some change in pun-
ishment. Beyond commutations of sentences and a visit to a federal pris-
on, his symbolic politics pointed to the discriminatory effects of criminal
justice measured by equality standards, the problems of policies of strict
punishment and its effects in terms of prison upsurge, and public and
social costs. Tough on crime discourse was to an extent replaced with
much more pragmatic “humonetarianism,” the already intimated con-
cept highlighting “the cost-centered logic behind nonpunitive reforms”
(Aviram 2015, 4).
That was the spirit of the moment that missed José Nicasio, and that
might be continued or lost in some future development of events. On” to
“events (such as the arrival of the Trump in another twist of political and
penal history where the Grinch may be expected to steal the promised
Christmas of penal leniency). On the other hand, we can observe the
orgies of drug violence in Mexico backed by the folklore of mariachi-
lauding prison escapes, profiling a country where the return of death
penalty entered serious discussions and became a part of political cam-
paigns. One of the more famous pictures shows a placid poster of the
Greens advocating the return of la pena de muerte with a green logo—
Verde with a toucan sitting on the big V. Selena Margarit Macedo Gracia-
no, a thirty-one-year-old Mexican citizen on summer vacation in Croatia
230 Chapter 3

in 2012, was killed by a few-years-younger silent killer in Marjan, a park

forest near the city of Split. He strangled her, severed the head of her
corpse, and hid it. He was sentenced to a comparatively low prison term
of fifteen years since the prosecution did not manage to prove qualifica-
tions of an aggravated murder that would, together with the political
pressures understandable in a country making money from tourism,
bring up to forty years’ imprisonment. At least according to the sentence,
Edi Mišić did not know his victim before. He just jumped upon her and
killed her. Dense eyebrows and empty bulging eyes. There is no death
penalty in Croatia as there is no death penalty in Mexico. Are these fami-
lies happy? It is hard to tell.

NOTES

1. For a more historical approach, see Desrosières (2000).

2. At the time of writing, a somewhat bizarre formal exception is Republika
Srpska, one of the two federal entities of Bosnia-Herzogovina, which still has a federal-
ly unconstitutional clause on the death penalty in the Article 11 of its constitution, but
it is in any case dissociated from any practice of the formal imposition of death penal-
ty, which is not provided in any of the three penal codes governing formal punish-
ment in the country.
3. Very roughly, Bosniak (Bošnjak) is the name for the secularized national identity
of the Muslim population in BiH in contrast to Bosnian (Bosanac) referring to all the
constitutive peoples.
4. The point of the vague formulation is that I don’t want to get bogged into
sectarian distinctions in which I am no expert. I am only making a general remark on
the ideological climate. See Alyahya (2016) on the misuses of Wahhabism, “a loaded,
anti-Saudi synonym for Salafism,” in the Western media.
5. The practice sometimes called vitriolage is spread worldwide but especially con-
centrated in South Asia. Although the victims are prevalently women, it is not solely
associated with gendered violence (see Welsh 2009, 69–70), although this is the com-
mon reason, including not only jealous vengeful male partners but also women attack-
ing their partners’ mistresses or even infanticide attempts. (The case of Babli Akter,
whose own father mutilated her with acid drops as a baby, seems too shocking even
for most of the last chapter, as was the Jonestown mass infanticide: for subjective
reasons, I am “content” to mention them in passing beyond the scrutinizing of a
theodicy even if a reader will find some worse cases in the formal sequence of the
concluding chapter.)
6. The translation is from an article in the German press: Für wie viel Geld würdest
du mit mir tauschen? Für wie viel würdest du mir deine Augen verkaufen? Unfortunately, I
don’t know Farsi and the facts of the case are reconstructed on the basis of Western
media coverage, like the majority of cases in the last chapter.
7. In a succinct assessment by one of the opponents: “Castration destroys human
dignity, breaches the right of privacy and procreation and attracts the cruel and un-
usual punishment clause” (Goswami 2014, 70).
8. Design—Construct—Manage—Finance—everything done by the private sector
companies, most controversially, running the prison.
9. Cf. translation that differs significantly in choice of vocabulary, using “power”
instead of “force” in the first sentence, and that misses the part on physical force,
replacing it with the Begin’s projection that he will end up in a concentration camp
instead, which is missing in Sprinzak’s rendition of the fragment (Wright 2014).
 Comparative Politics of Punishment 231

10. Pasted from the world’s biggest book-selling Internet site (Amazon n.d.). It is
electric but not lethal punishment accommodating the nuances of punishment of
Dante’s Inferno to the contemporary Western world where, beyond prison,
“[a]lternatives like probation . . . are insufficiently punitive to satisfy the basic sensibil-
ity of the victimized community” (Simon 1985, 927). For a thoughtful review, which
does not discard the argument a priori as bizarre, since it is perhaps not out of tune
with the deeper “grammar of punishment”—even if it is completely out of tune with
contemporary penal practices and sensibilities (“like going to a modern agribusiness
corporate farm and finding a rain dance in progress”)—see Simon (1985, 935, 939).
11. See the World Prison Brief for the problems of getting the numbers right in
China. The formal rate for Ministry of Justice–operated prisons revolves around 120.
12. The same authors notice that certain difficulties are present in deducing egali-
tarian legal order from such a doctrine that did not hold much with democratic equal-
ity: “There was simply no social equality before law. Fathers had more rights than
sons, husbands had more rights than wives, and masters had more rights than ser-
vants” (Li and Ma 2010, 39).
13. The concept of small offenses may be misleading, since political reeducation
through labor that should ideally bring ganhua—or the moral transformation of a
prodigal individual, filtered through the official discourse as a political transforma-
tion—is in the more overt domain of party discretion, pairing laxer procedure with the
Communist Party’s concern for the public good of a communist polity. See Pejan
(2000, 22).
14. The interview was a part of the report on the trial of Kaing Guek Eav, who “led
the horrific prison, actually a death camp for liquidation of the ‘enemies of commu-
nism’” (Grgurić 2009).
15. Charles Shaw, Baron Kilbrandon, was the second chairman of the Royal Com-
mission on the Constitution, commonly known as the Kilbrandon Commission, which
argued for the devolved governance. The heritage also included the creation of struc-
tures for autonomous social policy making.
16. The boys were later transferred to Dublin as the Borstal system was to be abol-
ished, but the name of the patron saint, quelle surprise, remained the same: it was St.
Patrick Institution in both cases
17. In contrast to the sad case of Humpty Dumpty, Joe Pesci glued the blessed
picture back together.
 FOUR
Punishment and Power
If Power Punishes, Does Absolute Power Punish
Absolutely?

John Emerich Edward Dalberg-Acton, a nineteenth-century British lord,

famously claimed that power corrupts. The more you have it, the higher
the chances that you are or will be corrupted. Absolute power is, logical-
ly, not good. Acton’s equation was, however, formulated as a tendency.
Perhaps a mere litotes, an irony of courteous language that expresses
opposition of what is explicitly said, it was probably a careful statement
in the style of what would later be known as social science that, even
when speaking of autocratic absolutism, leaves no room for absolutes.
There are incorruptible Socratic types of leaders, and even enlightened
absolutists who can arguably resist the tendency. Lord Acton did not
think so: Great men were “almost always” bad men, be it Caesar, Henry
VIII, or Napoleon. The tendency is lost in the absolutes. Niebuhr, a twen-
tieth-century American theologian and political thinker (who will return
in the concluding chapter) was more poetic when claiming the same
thing. He liked the saying that power is poison, as did Henry Brooks
Adams, a historian with a physics envy who studied American presi-
dents. 1
No matter where they came from, these claims were normative ex-
pressions of the same liberal idea, one of the political necessities of consti-
tutional constraint of unlimited power that tends to be dangerous, both
for society and the dignity of the individual. Although somewhat concen-
trated on the psychology of the phenomenon, even Kissinger’s point was
similar. Power is a great, even the ultimate, aphrodisiac, probably both
for those who strive to get it and those who adore those who got it. The

233
234 Chapter 4

dry observation of an éminence grise of international relations and the

practical authority on (dirty) realist politics speaks of the same dangers: if
we omit the cynicism, or simpler literal interpretations, the inebriation
and corruption are the two sides of the same coin of losing rationality in
public affairs and policy making. Another way to see it is through the
lens of the law of the instrument: give a tool to someone and it will be
used. A (person with a) hammer sees nails everywhere. Power as a means
to do something bad to others who cannot protect themselves will be
used; to have power means to do bad things without constraints. If it can
be done, it will be done, inducing discourses of legitimizing of power and
its absolute, both free and immense hands, and, as we have seen, its
ethical and political critique as—from the perspective of power—a mora-
listic discourse of the weak.
If we discard the baggage of ethical considerations and their more or
less poetic expression, at least for the analytical purposes of this discus-
sion, we then see a concept that relates to the abilities to fulfill goals but
also to imposing one’s will on others in conflicting situations, and that is
probably still the most important singular concept of political science as a
scholarly activity that, dealing with politics and the state, necessarily
deals with power (Hay 1997). Traditionally, who gets what, when, and
how, in the sense of the practical politics of distributive justice, is consid-
ered one of the most important questions of political science (Lasswell
1936; Lasswell and Kaplan 1950): politics, as an object of research closely
intertwined with power, has as one of its important aspects the distribu-
tion of goods and opportunities distinguished from the “pure” war and
“pure” economy, although often metaphorically encompassing them,
when we look at market transactions and attack and defense as a matter
of decision making and conflict of interest.
Considered together with a wider conceptualization of politics—as
something that is not constrained to government as a set of formal insti-
tutions or actors, or informal elite at the top of the social hierarchy, or to
polity in the sense of constitutional order, but as something that per-
meates the social body with relations of dominance, inequality, conflicts,
and decisions—power seems extremely important both for violence and
punishment. “In simple terms, violence is a tool for taking power” (Bau-
meister 2001, 120). However, it is also a disposition that can easily breed
violence. Violence is means to an end such as power, but it is also expres-
sion of that power, where there are no constraints, where realities of
dictatorship, like in Llosa’s Feast of the Goat, invigorating historical data
about the Dominican Republic with writer’s imagination, reach the Freu-
dian constructions or extremes of Greek mythology where blood, death,
war, and revenge come in plenty. Violence and punishment come easier
with power, and even torture, as we shall see, comes easy if the workings
of power are such to induce it outside of instrumental rationality.
 Punishment and Power 235

If we have established, in our opening conceptual gymnastics, that

punishment is a form of political violence pertaining to authority, what
are the relations between punishment and power? If punishment serves
to confirm power and reproduce its legitimacy, does it also work the
other way? Does power in its forms produce, or tend to produce, certain
forms of punishment, in a vicious circle of dominance? And does punish-
ment sometimes undermine power instead of confirming it? Whatever
the answer, it is short of astonishing how understudied the relations
between power and punishment are, concepts that are obviously closely
connected—since the more powerful punish the less powerful or, in the
broader version that we have explained, the less powerful challenge the
more powerful by (pretension on) punishment, calling for a set of new
social and political relations—but also distinct because power may not
manifest itself in punishment, which can make power weaker, more ex-
posed, and a challenge its legitimacy, the more or less subtle fuel on
which it runs. 2 Power punishes, but as our title asks, does absolute power
bring absolute punishments, in the style of the biblical Almighty with His
floods and various Armageddons of disease, earthquake, and fire? Are
dictators always bad or corrupt penologists, or can power lead to an
enlightened approach, used to get more for all and to better things out-
side of the zero-sum game of the power-holder and power-subject, pun-
isher and the punished?
These are crude questions probably with no general answers that
would fit all the different contexts. As the prior two chapters tried to
establish, things change and, to paraphrase an old Rod Stewart’s song,
every picture tells a story; the particular context, as always, is much of
that story. With that in mind, this chapter explores ontologies and dis-
courses in this perspective, mostly but not exclusively building on the
insights of Michel Foucault, a late Collège de France professor who re-
searched both themes most notably through the 1970s and was influential
in social sciences, both as an analyst of power and punishment. The first
part explains the eternally contested concept of power, giving a brief
sketch of some classical stories on the subject in order to better under-
stand what the novel thing in Foucault was, if any. The second part gives
an account of Foucault’s view of power that was in some of his works,
paired with an analysis of the historical policies of punishment; it is the
central part of the chapter, an elaboration of a Foucauldian theoretical
framework bringing together the types of power with the types of pun-
ishment. The last two parts focus on cases: a comparative one exploring
the relation between power and the persistence of extrajudicial torture,
and a second one of state building in the postcommunist European pe-
riphery, which explores the changes of punishment associated with
changes of power in the 1990s Croatia, where the notorious Balkans ca-
resses somewhat less notorious “Mitteleuropa.” After this section, fo-
cused primarily but not exclusively on the modes of resurrections of
236 Chapter 4

sovereign power, the conclusion brings the usual tabular summing up,
together with a message on the importance of power for the themes of
punishment and some philosophical speculations within the discourse of
the chapter.

AN INTRODUCTORY NOTE ON POWER AND ITS POSSIBLE

IMPLICATIONS FOR PUNISHMENT

Franz Neumann, a political theorist—one might say (provocatively, I

suppose), a leftist Schmittian by theoretical disposition—was completely
right about one thing: in a brief but valuable essay on power from his
posthumously published The Democratic and the Authoritarian State, he
humbly wrote that it is hard, if not short of impossible, to add anything
new to this theme since a myriad of books speak to the theme while,
furthermore, every treatise in political science in one way or another
deals with the subject (Neumann 1957). He just offered a gnomic review
of the approaches—ra(n)ging from psychology and Robespierre’s theory
and practice to the theology of Aquinas, who claimed that even between
angels there was hierarchy, so one cannot run away from power. This
short section does not go farther than that; although it does not refer to
angels, it roams shortly and freely across political science and political
sociology, which are, Gramscian terminology aside, often hardly distin-
guishable since they share subject and method, and their differences from
the review below belong more to the contingencies of traditions and
moderate variations in theoretical and methodological accents than to
deep epistemological divisions between the spheres of knowledge in,
let’s say, the Aristotelian sense distinguishing between theoretical knowl-
edge of the natural sciences and practical knowledge of the social sci-
ences, that is, the ancient conglomerate of politics, ethics, and rhetorics.
That said, power as faceted social phenomenon is today treated by
various disciplines. It is the field of sociological explorations, where the
classical definition is given by Weber. Although Weber was not especial-
ly interested in punishment, it can be associated with his idea that power
is the ability in one social relation to impose one’s will against the will of
the other. This happens in punishment and the definition is quite broad,
sociologically amorphous in Weber’s words, meaning that this latent
ability to control others, individuals or groups, rests on various bases or
means of power, be it economy, military technology and force, cultural
capital, and so on. While all of these terms and ideas were not necessarily
elaborated by Weber, they were present in nuce in his classical elabora-
tion of sociological concepts in Economy and Society or they are easily
associable with the concept as it was initially defined. The usual textbook
story continues with the shortcomings attributed to this definition, and
there is then the metaphor of other faces of power popularized by Bach-
 Punishment and Power 237

rach and Baratz, and also the grandiose history of power written by Mi-
chael Mann. It is also an area of political science analyses of decision
making in the tradition set by Dahl. And Lukes, of course, still gives a
useful review. Let me break this down a little bit.
Dahl, as a political scientist and an exponent of pluralism in political
theory, starts from the postulate that power is divided between various
groups and is fluid, which may be applied beyond the local venues of
American democracy he explored. There is no simple, uniform, and con-
stant answer to the question of “Who governs?” (Dahl 1961). Sometimes
one set of interests prevails, sometimes another, which offers a starting
point for a hypothesis on the various interests shaping punishment, per-
haps at the expense of the common good if one operates with such de-
manding concepts at all (e.g., economic or ideological entrepreneurs of
punishment getting away with particular sanctions or penal policy lean-
ings that comfort them, unlike the rest of community). Methodologically,
the focus should be on the measurable aspects of the decision-making
process, let’s say in the field of penal policy making, and politically this
often goes in hand with the assumption that the pluralist political process
is a good and open thing, potentially producing just outcomes, not a
mere farce with seriously limited degrees of freedom. Unlike the sug-
gested critique coming from the Left, embodied in Schattschneider’s
well-known ironic remarks—for example, that this heavenly choir of plu-
ralism sings with an upper-class accent (see Schattschneider 1960, 35)—
Dahl, early Lindblom, and others political scientists from the United
States and the United Kingdom were enthusiastic. A liberal democratic
pluralist arena means a healthy competition of interests. Not only is there
no elite of power, but democratic pluralism will prevent the forming of
such an abomination. We might speculate that a normative framework of
democracy would lead to “democratic punishment” in the interest of all,
a Beccaria-type of penal policy if governed by rational elites or a more
“lynchy” variety if governed by emotionally responsive populists, but
these categories perhaps do not fit too well into the sketched framework.
We should then turn to its critique.
The idea of Bachrach and Baratz (1962) is intuitively appealing: some
things come to the agenda and are thrown into the democratic arena with
an uncertain result. This is one face of power; we see and then accept: it is
observable and measurable, available for normative curtailing, rational
discussion, and transparent decision making. But this is a too-simple pic-
ture. The other face of power, then, builds on the premise that some
things, perhaps the most important ones such as some constitutional mat-
ters relating to property, economy, taxes, military, and so on, do not
appear on the agenda at all. This is so-called nondecision making and the
methodological devil is, of course, in the fact that you cannot measure
what is not realized or even not decided. The expected critique in less
subtle habit but with the same gist is that the approach is not far away
238 Chapter 4

from conspiracy theory. The point for punishment (a hypothesis) might

be that certain types of interests would prevent open decision making
about the most fundamental structures of penal policy by preventing
questions such as the following, stupid or not, from being posed political-
ly, or achieving that in advance they are discarded and discredited as
anarchic and not bearing a feasible answer: Why do we have prisons at
all? Is there another way to punish? Why do police and courts work in
such a way at all? Can society abolish punishment? Why does it not work
as Huxley’s Pala, as a well-engineered mechanism infused with Eastern
spirituality and with all-encompassing prevention?
And then, naturally, appears a story of how preferences are formed at
all and the third face of power appears, chiming the familiar themes
opened by the Marxist critique of ideology, the theme of false interests
and of Klasse an sich, an economic fact that becomes our politically aware
Klasse für sich, overthrowing bourgeois oppression. While the critics (see
Hay 1997) observed that this is both theoretically self-defeating (asking,
what epistemologically privileged position does one have that enables
him to say that some interests are flawed, and how can he know that his
position does not suffer from the same delusion?) and politically offen-
sive (at least in the liberal democracy, where saying that one knows what
is in the other’s best interest is patronizing), the interesting idea for dis-
courses on violence and punishment stemming from that position could,
in my opinion, be found in the following question: how does power work
so that some preferences are formed and punished and others are ac-
claimed in a revolving play of politics and society? This is not necessarily
a question of class-consciousness (Klassenbewusstsein) and class analysis
but of the formation of mind-sets, dispositions, and preferences within
the ubiquitous games of power in which some get to be punished. It is a
shift from Marxist analysis to Foucauldian analysis, not necessarily
against the class and the state but beyond it. This shift did not leave
historians and analysts of power indifferent.
Michael Mann was certainly one of those who fruitfully combined
sociological theory and historical analysis. In a gargantuan effort, he of-
fered a history of power from (pre)history to the present day (Mann 1986,
1993, 2012a, 2012b) while also trying his hand at the contemporary exer-
cises of political critique, such as one arguing that the United States is an
“incoherent empire” since its sources of power, in the wide Weberian
sense of the concept, are not synchronized; from Mann’s analysis, the
United States emerges as a military giant, but also as an economic back-
seat driver, an ideological phantom, and a political schizophrenic (Mann
2003). Such incoherence of power in Mann’s categorization—economic,
military, ideological, and political power—radically reduces the chances
of achieving the proposed goals of foreign military interventions, as
Mann has foreseen. What does all this say of punishment? Punishment
comes in a game of power here, as one’s victories or defeats come from
 Punishment and Power 239

the controlling of, for example, military technology or from economic

power. Sources of power translate one into another as forms of capital in
Bourdieu: money can buy weapons, ideological influence can induce re-
sults in politics and economy, while military conquest can gain economic
resources. Punishment then as economy and ideology is an applied force
within a political structure. Violence is part of the open game. As the 1415
Battle of Agincourt moved the pendulum of power from one nation and
also class to the other (British vs. French; pedestrian common folk shoot-
ing arrows vs. mounted aristocracy), so is punishment found at the inter-
section of these forces: penal colonies appear in the colonizing process,
and prisons appear in the societies that have logistical and other presup-
positions to operate them. Mann talks back to Durkheim, and Rusche and
Kirchheimer, standing behind him. On the other hand—or, in a way, in
the same—power is in the vein of more encompassing and harmonizing
theories such as Parsons’s functionalism not necessarily seen as a zero-
sum game, but as a positive ability of society to do things. Power is a
functionalist trait of the societal whole. This might frame punishment as a
necessary function to maintain a value system, similarly to Durkheim’s
older school of sociological functionalism. And if it corrupts individuals
or groups, influencing punishment and other violent practices in a harm-
ful manner for the whole, a society should find checks and balances, or
decline or perish in the wastelands of social and sociological history.
Power, then, is a legitimate resource to be used.
Before coming to some details of his conception of power and punish-
ment, within this section it can be said that Foucault in part agreed with
this reframing of power on a metatheoretical level. He did not always see
power in negative terms, such as when, for example, it appears within a
Marxist view on class oppression; the conception of punishment that
comes from power, reinforcing class domination, was not necessarily
Foucault’s cup of tea, even if Rusche and Kirchheimer have produced a
grand livre (Foucault 1975). The metavocabulary of the radical view has
changed, which perhaps did not delight Lukes, who was critical but not
dismissive of Foucault’s position, usefully associating it with some older
Spinozistic ideas. Lukes claimed that Foucault in his approach reframed
some quite common places in the old and venerable study of the phe-
nomenon, pairing less fresh insights with excessive rhetorics, “entirely
free of methodological rigour,” but still providing a constructive Lakato-
sian research program (see Lukes 2005, 87–107). However, although
claiming power’s autonomy from economy and its productivity in terms
of creating subjects and situations, that did not mean framing it as a
general system of achieving society’s consensual goals. Quite the
contrary. Foucault at the same time kept the negative connotations of
conflict and domination and, all nominalism aside, when he wrote about
power, his object of study kept the contours of a mystical entity that
operates independently of any particular individual catching them all in
240 Chapter 4

its mesh (see also Scarry 1987, 59), although it can be used and usually
does work in a system of group domination. It is then not so surprising
that, for Foucault, it was exactly the opposite of Clausewitz’s famous
saying, as he put it in his Discipline and Punish and Society Must Be De-
fended lectures from the middle of the 1970s: maybe war is the continua-
tion of politics by other means, but it can also be said that politics—or for
Foucault, power—is a continuation of war (Foucault 1997a, 16). Perma-
nent conflict can be coded in open strategies and tactics of violence or
with those obscured by discourses and more subtle dominations. It was
at least an interesting idea for exploration (Foucault toyed with it for
some time, ultimately not sure what to make of it) since, to reiterate,
vocabularies of these both areas—politics/power and war—function at
ease in each other’s backyard. And punishment is easily put in this
framework, both in history and the present, at the same time being dis-
tinct from power. Power and punishment sometimes seem to be pretty
close, but they are not the same.
This will be clearer after the discussion, but a short illustration is in
order here. Take, first, the conceptual scheme offered by Lasswell. He
posited, schematically, the distinction between lawful, naked, and pre-
tended power, which should illustrate “the relationship between power
as control and power as authority.” Lawful power is controlling and
authoritative; naked is controlling but not authoritative, while pretended
is authoritative but not controlling. An explanatory footnote added:
“Naked power and pretended power are incomplete power; no power (or
nominal power) is no authority, no control” (Lasswell 1971, 27; Lasswell’s
emphases). Lasswell wanted to highlight what was for Hannah Arendt a
distinction between power and force, which stand in a trade-off relation-
ship: the former is closely tied to real democracy, it is a consensus of a
collective willing to act; the latter relates to dictatorship operating by
military, police, and punishment, inducing fear in a more or less ato-
mized multitude (see Arendt 1970, 41; Jalušič 2015, 17–18; Meints-Stender
2015, 37–38). 3 It is, in other words, the opposition between effective and
legitimate power—effective because of fear or passivity of the people.
(The case of legitimate but not effective power is harder to imagine but
possible, and happens when people and their representatives are coun-
tered by naked force, as in military coups: one may think of Allende
against Pinochet or of the modern history of Turkey.) Although the first
is called lawful, it is more a thing of political acceptance than the legal
form. A possible speculation would be: more democratic power—that is,
more authority—leads to less punishment, and more naked power leads
to more punishment. This goes back to the Durkheimian hypothesis
about an almost Schmittian autonomy of the political, which will here be
elaborated through Foucault. The important thing, for now, is to keep the
concepts distinct to better understand the purview and the meaning of
the framework that follows in the bulk of the chapter.
 Punishment and Power 241

According to the useful conceptual crisscross offered by Bachrach and

Baratz in their short clarifying piece (Bachrach and Baratz 1963; see also
Lukes 2005, 36), one should clearly distinguish five related concepts:
power, influence, authority, force, and manipulation. Power is latent: B
accepts the wishes of A, although he wouldn’t if A did not have power
over him. That is, there is a conflict of values, the threat of sanctions
lingers, but the relationship is latent. If an enemy soldier stops in front of
a sentry box of a rifle-armed guard, that is power, but not if the guard
shoots a suicidal person who, in fact, wants someone to perform the task.
In the case of influence, the story is similar at first. The relationship is
latent, there is a conflict of interest, but there are no sanctions. Those who
have influence but not power are sort of forceless. Some interpret judicial
institutions in this manner, since they don’t have armies; or consider the
pope of Rome, who according to Stalin’s rhetorical question, interrupting
Churchill, does not have military divisions (except those in heaven) to
decide but only “moral influence” (Bangersky 2009). In the case of au-
thority, there is no conflict of interest. In a rather idealized example, a
policeman who checks one’s papers is legitimate because that person, a
civil member of the community, accepts the need for institutions such as
police and theoretically grants them legitimacy, through a somewhat
complicated process usually but not necessarily involving elections and
the legislative powers of parliament enacting laws distributing rights and
duties. Force is like power, except there is no choice: the relationship is
not latent. In a given example, the sentry or policeman uses means of
force—that is, shoots and takes a life that defied power (as Goethe’s
Erlking takes a boy’s life with force: Und bist du nicht willig, so brauch’ ich
Gewalt). Finally, manipulation: in that relationship, there is a conflict of
interest, but there is neither choice nor force. Brainwashing as an extreme
illustration comes to mind, but the authors take the historical decision of
the US Supreme Court, for example, that led to desegregation for various
reasons in various constituencies. The line of thinking is not dissimilar to
Lasswell’s, although it contains a few extra elements; in a relationship of
subjugation with or without the conflict of interests of the parties in-
volved, one can distinguish force, power, and authority, with extra varia-
tions in influence and manipulation added.
The sociological point of all of this is that punishment is a manifesta-
tion of power but when it is actually realized, the power loses its latency.
It wears out. Politically, power is related to legitimacy and general con-
sent in the community in the Rawlsian sense of the veil of ignorance in
the initial position where abstracted egalitarian members decide on the
rules of the game in which they are going to engage. As a subtype of
violence pretending to legitimacy, punishment is associated with power
but stands in an uneasy relationship with it: turning it into force and
potentially arousing dissent. And, of course, one might, to use the meta-
phor of de Saussure’s structuralism, keep the acoustic mask but change
242 Chapter 4

the mental content; the word power may sometimes mean many things
and many free riders can enter that bus. For example, in a more complex
and thicker account, power shall include force and manipulation, and
perhaps a mélange of all the concepts that Bachrach and Baratz tried to
divide by clear analytical distinctions that usually mix back to indistinc-
tion in concrete social and political situations.
But all of this is abstract. When one takes into account different tradi-
tions and languages that speak of power differently (see Hegy 1974, 335;
Foucault 1997a, 37), with all the alertness concerning the here challenged,
used and misused concept of culture, the question is: Which power? And
what punishment? Remember that Rusche and Kirchheimer sharply ex-
pressed their nominalistic approach: there is no punishment in the ab-
stract. One way to answer these questions is through Foucault, since he
starts with an interesting assumption that there is no power with a capital
P, only different systems and functionings of power, as well as different
forms of punishment, which is an axiom for Rusche and Kirchheimer as
well. The section that follows is not at all meant as an absolute: I take
Foucault’s as an imaginative, well-elaborated account developed in sig-
nificant time, associated with various historical episodes, and analytically
applicable to contemporary developments. It is able to change and
evolve, built around the core assumption on the importance of technolo-
gies, discourses, and forces used for political ends, and including punish-
ment in the operations of power. First the narrative, then the caveats and
qualifications.

A FOUCAULDIAN FRAMEWORK: POWER AND PUNISHMENT AS A

NOMINALISM OF FORCES

This section starts from an assumption that the relationship between

power and punishment can be formulated as a hypothesis: a given type
of power conditions certain modalities of punishment and sets the terrain
for a penal policy that is closely intertwined with power. 4 It is a continua-
tion of Durkheim’s idea of the autonomy of power in shaping punish-
ment. Going further than general remarks of this “philosopher with
vague socialist inclinations from the beginning of the Third French Re-
public” (Foucault 2001b), as Durkheim was en passant categorized by
Foucault, is done with Foucauldian means. 5 These two, in fact, had a
similar core idea but with vastly different operationalizations (see Fou-
cault 1975, 31); in Foucault, power is much more elaborately theorized.
His analyses of functioning of power and historical genealogies of penal
policy done in the 1970s—arguably one of his most notable contributions
to social science—are of nominalist leaning.
The main content of the section, on top of the initial charting of some
possible interpretations of Foucault, consists of the schematic associations
 Punishment and Power 243

between types of power identifiable in Foucault—followed by a note

about Deleuze’s postscript to Foucault’s theorizing in an attempt to ex-
emplify possible expanding of the typology—and forms of punishment,
which sometimes merge with political violence. We shall see that a sove-
reign power, a despotic hierarchy controlling territory, or a democratic
movement of the masses punishes the bodies in the elaborated open or
hidden theaters of cruelty or lynching feasts; disciplinary power will
place them in space and time with various techniques in the carceral
system, amplifying and developing the disciplines developed and used
within society. Biopolitics as a system of eugenics and epidemiology,
power that makes a population live by operating in a milieu, is paired
with racism, turning into thanatopolitics with its genocides, ethnic
cleansing, and camps, as historical punishment of “other” populations
defined according to various political criteria. And pastoral power,
whether a religious spiritual guidance or a form of secular governmental-
ity, will induce some soul searching or responsibility as a subtle punish-
ment of each and every one of the subjects to guide the entirety of the
flock, in an omnes and singulatim operation. But first to specify what this
is reading of Foucault exactly and why it is done since it is obviously only
one way to toy with a multifaceted discourse not devoid of its controver-
sies.
There are many masks worn by Muzil, a character resembling Fou-
cault written in roman-à-clef by his younger friend Hervé Guibert. Like-
wise, there are more ways to approach the subject matter. One method of
approach is exemplified by Guibert, as suggested by the title of his auto-
fiction that says much, To the Friend Who Did Not Save My Life (Guibert
1990). Reading of Guibert suggests that, in Foucault’s case, punishment
may be a private desire. It may also be a historical longing or nostalgia,
and also a social science hypothesis. First, in a “lost” interview from 1971,
where he spoke about drugs, madness and other themes, Foucault stated
that everything he wrote about is in a sense private (Claris 2014). Public
presentation becomes a coded private reference, an approximation or
suggestion at best for singular dramas and experiences, since the time of
a discourse is not one’s own and it cannot reconcile you with death, as
the final lines from The Archaeology of Knowledge have it (Foucault 1969,
275; Foucault 1991a, 72). Longing to punish and be punished is thus a
kind of private pathography (Milat 2012), a bag full of leather masks,
gags, lashes, and other instruments associated with conventional sadom-
asochistic folklore (Gaussen 2000). This is the approach taken in Miller’s
biography of Foucault, highlighting a historic biographical parallel found
in a telling case of Pierre Rivière, a nineteenth-century Normandian par-
ricide present in a footnote in Discipline and Punish, as well as in a special
dossier, which was an outcome of Foucault’s Collège de France seminar
and in René Allio’s film in the production of which Foucault took part.
Rivière, in Miller’s words “a paragon of primitive sadism” (see Miller
244 Chapter 4

1994, 226–27), killed his mother, sister, and brother. He explained his acts
(he hated his mother and wanted to save his father, as he saw it), and
finally hung himself in prison. Since the historical tides of penal policy
were turning, Rivière was robbed of the aspired heroic status and the
usual saturnalia of torture were replaced by various expert psychiatric
witnesses diagnosing mental illness. The truth of life is in its trials and
private demons, early contingencies of passion, and their later unraveling
in the course of a biography; punishment within this perspective is more
of a psychoanalytical than sociological or political variable.
The second approach to Foucault is in a way not so different, but it has
a far-reaching philosophical ambition: Foucault as a Nietzschean philoso-
pher. Discipline and Punish is a genealogy of the Western soul following
Nietzsche’s 1887 collection of three essays known under the title of Zur
Genealogie der Moral, only spiked with historical references to methods of
punishment, and an arguable philosophical homage to Heidegger—
namely, the substantive thesis that technology determines the subject (see
Stiegler 2011, 35–36). Instead of blood and violence, we have become
tame and civilized; the Eliasian end has been achieved by other means,
the technologies of punishment and their efficacious economy. The civil-
ization we inhabit has, through the changing technologies of punishment,
become a zoo of tamed wills, a “city of compressed souls and narrow
chests” (Nietzsche 1988a, 289–90). Our freedom to act is, if we accept this
discourse, only a consequence of a history of punishment. As Croatian
analytical philosopher Nenad Miščević pointed out, there is no black box
of autonomy. He offers an instructive exegesis of a piece of alternative
hermeneutic of action referring to Nietzsche’s works, mostly Goetzendam-
merung, in “an attempt of critique of the classical tradition” of the philos-
ophy of agency (Miščević 1988, 231–47): the belief in the subject, a belief
that action presupposes a subject, is from Nietzcshe’s perspective under-
stood as a big stupidity. Instead of an autonomous subject, a body, Leib,
appears caught in a system of historical dominations. Thus we do not talk
about or search for a mystical “silent within,” to borrow Steve Vai’s meta-
phor; our supposedly autonomous self is constituted by a set of outwards
forces (see Miščević 1988, 242). Or, in a more prophetical tone often as-
sumed by Nietzsche, “almost all forms of existence which we consider
distinguished today once lived in this half tomblike atmosphere. . . . The
time will come, I promise, when the priest will be considered the lowest
type, our Chandala, the most mendacious, the most indecent kind of hu-
man being” (Nietzsche 1988c, 550). The root of our own subjecthood that
we are searching for in ourselves is a chimera; our action is a consequence
of history, a curious ideological afterbirth, as is our disciplined and tame
behavior, achieved through the history of punishment, whether we like it
or not; with the projections of redemption and eternal return, or without
them. This is then a philosophical genealogy of the body of the con-
demned and disciplined, a correlative to the Kantorowicz’s hermeneutic
 Punishment and Power 245

of the king’s person sacralized in medieval political theology. Punish-

ment is power in this perspective, rendered as a lofty mélange of philoso-
phy and history, calling for the private sentiments of the closed, dis-
torted, and oppressed to come out. Like the siren call of the teenage pop
song performed by Katy Perry where she turns from politely sitting to a
rampaging tigress, it is as if Foucault silently says, “You’re gonna hear
me roar.”
Instead of the private fouets whipping on the pages or the search for
the whereabouts of the lost Western soul, a more down-to-earth ap-
proach puts Foucault in the role of a social scientist, although he wasn’t
one. If we force him into that mask, he offers us a theoretical framework
to think about punishment in the contemporary world where—to offer
some random examples from the United States, Croatia, and the Middle
East—arguably mind-damaging solitary confinements for juveniles tried
as adults exist, discursive storms of criticisms and support appear for
spanking a baby over his diaper, and the theological intricacies of treat-
ing of women slaves flood the procaliphate Twitter accounts, discussing
which kind of punishment applies to them (see MEMRI 2014). Even this
reductive understanding of Foucault is controversial. It is wholly rejected
by those probably not too well acquainted with Foucault’s oeuvre, who
episodically enter the epistemological territory of violence and punish-
ment, but also by those who are in the field but only accept a certain kind
of historical reading of Foucauldian narrative, and by those who accept
its contemporary relevance but think it does not work too well today.
The first case is exemplified by Steven Pinker, our acquaintance from
chapter 2 who, as did Foucault, rejected the idea of fixed human nature,
good or bad. Perhaps associated with the superficial politics of warring
camps in sciences who label each other “positivist” or “postmodernist”
without too much (or any) reading of prose from the other side, Pinker,
as the reader might remember, was quite dismissive of Foucault, writing
on his website that he did not bother to mention Foucault in The Better
Angels because his work lacked quality. Pinker termed Foucault’s Disci-
pline and Punish “eccentric, tendentious and poorly argued,” referring to
Merquior’s 1980s study as “a lucid deconstruction” (Pinker n.d.). On the
basis of the two already-mentioned meager references within the book
itself (Pinker 2011b, 707, 735), one might reasonably speculate that Pinker
has no serious clue about Foucault. Even if one accepts the labels of
eccentricity and tendentiousness, having in mind Foucault’s flamboyant
style where bold claims exchange with overblown expressions of modes-
ty and multiple qualifiers, the original interpretation of the intriguing
array of facts from the history of penal policy in France and elsewhere
hardly deserves the label of a “poor argument.” In any case, the meritum,
or the only serious statement that speaks of the subject matter by Pinker,
and is itself subjectable to the logic of falsification, is an oblique reference
to Merquior (1985). What does Merquior say then?
246 Chapter 4

Within a framework set by an introductory motto (taken from Nietzs-

che, ironically) that frames Foucault’s efforts as grandiose failure, Mer-
quior’s critique of Foucault has several components (Merquior 1985,
85–107). General objections range from pointing to Foucault’s rhetorical
overstatements to the diagnosing of his paranoid vision. Epistemological
objections speak of the absence of causal mechanisms and the drawing of
too sharp cuts between the historical phases (it is functionalism and
teleology in Discipline and Punish, instead of the desired precise linkages
of causes and effects). An empirical critique objects to the weak corrobo-
ration of the thesis of political danger of the brutal public display of
power, with reference to Spierenburg, as well as it observes that physical
punishment continued, and points to the status of the country in ques-
tion—France—as a sort of chaotic agrarian economy, not having much to
do with the panopticism and disciplinary society of Foucault’s narrative.
Finally, a critique still pertinent today: are there Foucauldian practices in
prisons and correctional homes at all, since life on the inside is often
brutal, and incapacitation or simple neglect of the outcasts seem to be the
only tangible “goal” of the carceral system? Nothing of this, however,
undermines the book. Discipline and Punish speaks of tendencies in an
original manner, rhetorically amplifying the relatively abrupt historical
break both in its duration and quality. It does not falsify or forge. Its
claim is never that the break was absolute, definite, epochal, or exclusive.
Panopticism is not presented as a fully realized practice, nor does Fou-
cault claim that the executions often followed the rebellious logic of
Braveheart. Physical punishment endured much longer and it still lingers;
prisons are often mere warehouses or places of torture. There is no prob-
lem for Foucault there. His point is that the general picture has changed,
and to see it associated with the constellation of power and its historical
or sociological mutations is an interesting approach that merits serious
discussion. Merquior may have offered “a lucid deconstruction” but cer-
tainly not the one that would erase Foucault’s work out of scholarly
discussion and certainly not Discipline and Punish.
The second approach which I want to discard here can be observed in
a tendency to interpret Foucault in a narrow manner, not using his works
as a handy analytical toolshed, as he suggested himself, but in a very
literalist manner as some kind of exercise in theological hermeneutics. A
personal anecdote of the type that are plenty in social sciences blessed by
peer-reviewed journals can perhaps illustrate this trend in interpretation.
Some time ago, I sent a paper on a thoroughly researched empirical case
framed as a Foucauldian hypothesis to a journal with an otherwise
friendly disposed editor. The editor did not even want to give the piece
for review, leaving open the option of rewriting it as an empirical case
that perhaps tentatively tests Foucauldian framework along with some
others. This is also an interesting option, to be sure, but the point here is
that Foucault in present was a problem. Although all the disclaimers and
 Punishment and Power 247

contextual adjustments were there, the Foucauldian hypothesis was a no-

go because the editor saw it as something that spoke of the longue durée
shifts in history and as such is not applicable today. It is the story of what
punishment was and how it changed, but not how it works today, what-
ever the circumstances that might bring “history” back to life.
This leads to the third option in reading Foucault. Even if accepted,
Foucault is sometimes thought of as a passé author. It seems that at least
in this specific area, his declared verdicts on Marx and Sartre, fishes in the
waters of centuries past, caught up with him. Foucault, for some, has
become an author whose ideas on punishment belong to times past, and
the alleged new developments seek alternative explanations from old
and new authors—but not from Foucault, who “at least as regards penal-
ity, belongs to an episteme specific to a particular phase of modem devel-
opment which may now have passed” (Pratt 2000a, 190). After dismiss-
ing him, the authors turn to some other theorist in search of theoretical
grounding; Pratt, for example, turns to Elias, who is taken to be more
relevant to the present; if civilization has influenced punishment, the
same can happen with decivilization, and you have social science operat-
ing with causes and effects, independent and dependent variables in its
explanatory narratives: “what we see taking place today represents nei-
ther ‘the end of history,’ nor some penal retuning of no great moment;
instead, we find a significant readjustment, with ‘civilized’ penal ar-
rangements, having to accommodate, to a greater or lesser extent, de-
pending on local contingencies, the decivilizing forces” (Pratt 2000a, 192).
Why a similar thing does not work with Foucault, I have no clue. I
have thus far not read an account that would convince me to discard
Foucault’s interesting and empirically applicable ideas about power. The
same thing done with Elias earlier can be done with Foucault. I thought
that this was obvious, not because the author himself is quite clear on this
matter (his role of the “historian of the present” is reasonably well
known) or other ad hominems, but because his ideas work well in empir-
ical research of power and punishment. The Croatian case that I explore
later attests to that but I am sure that many more would fit neatly into
this theoretical language. However, to conclude this overblown apologet-
ics and get to the point: these approaches can be analytically separated
but they are not at all mutually exclusive. Muzil’s fouets, the genealogy of
a Western soul and social science cohabitating? Are you sure? Unex-
pected help comes from le bon Karl Popper, who highly cherished the
distinction between the contexts of “discovery” of a theory and its testing
(Bird 2012), is revived in chapter 6; it is not important where the idea
came from, and with whom or what it shares space. It may spring from a
dream or a longing. It is psychology, or Freud’s psychoanalytical terrain
of Traumdeutung. The question is: does it work, regardless of what meta-
language, personal, or philosophical baggage it is paired with? This as-
pect of discovery is something different from an aspect of scientific verifi-
248 Chapter 4

cation or a genuine attempt at its falsification. Thus, the only relevant

question is: can Foucault stand the test of a theoretician of the present or,
in a sense, contra his quite nominalist self (see Foucault, Gordon, and
Patton 2012, 106), as a sociologist of power and punishment relevant
today?
What is helpful in interpreting punishment today is the elementary
idea, present in Foucault, that punishment is conditioned by power. In
Discipline and Punish, punishment is a ritual of power—in the first part of
the book explicitly, but this works for the whole treatise. It does not
establish justice, but it sets power into motion. It is a small war waged on
the body, the theater of power and its éclat. Physical violence adminis-
tered on the body through the elaborated ceremonial speaks about the
political functioning of the penal system. Punishment is a politicized war
between the sovereign and the transgressor, a public feast of power simi-
lar to the entrance of the king into the conquered city. Foucault, in charm-
ingly clumsy English, explains the main thesis of “the prison book” to
American students in Berkeley in 1983: it is not that prisons generated
disciplinary power. It was “exactly the contrary”: techniques that
emerged in society were perfected and catalyzed by the carceral system,
and further appropriated by the governing structures (Canalul utilizato-
rului hiperf289 2007a). First, it was power and then punishment. As Fou-
cault has lectured in Society Must Be Defended, power is not always a
servant of the economy. It is not formally isomorphic to it, nor functional-
ly subjected to it; it is not a contract or an ideological Überbau (Foucault
1997a, 15); or more famously, as postulated in the theoretical part of the
first volume of The History of Sexuality, it is not a form of law as opposed
to violence, a system of governing institutions, or a general dominance of
one class over another (Foucault 1976). Power does not exist in the sense
of the specific content of relations but is “coextensive with the social
body,” “interwoven with other kind of relations,” and appears in multi-
ple forms together with resistances and utilized within strategies (Fou-
cault 1980, 142). Nominalism suggests that power means quite different
things in different epochs and even in the same time where types of
power coexist. In The Mesh of Power, for example, Foucault explains mech-
anisms of power in that way (and with a reference to Marx): mechanisms
of power are techniques, different techniques in different settings (Fou-
cault 2001b). 6
So, after one accepts this “general” position, its nominalism seeks an
empirical elaboration relevant in our times: which techniques of punish-
ment appear in which settings of power? The first and second compo-
nents are complex, and so are the combinations in real situations, where
power flows in different ways punishing in various ways. On the basis of
Foucault’s oeuvre, I believe that four relatively simple typical links be-
tween power and punishment can be singled out, which can then be
 Punishment and Power 249

combined in an analysis of real situations, amended, corrected, and de-

veloped.
First is sovereign power, in the realist political sense, measured
through its organization and its effect and not by its covenants and the
documents of international recognition. It is not an entity of international
law but a variable of empirical political science. It is defined by a concen-
tration of power, as an ability to unleash brutal force that induces subjec-
tion (see Foucault 2000b, 324). It is not differentiated in the sense of the
division of power and a proliferation of specialized bureaucratic portfoli-
os. Historically, it is the power of sovereign kings as a larger variant of
the power of feudal lords commanding the sword and having armed
forces at disposition on their land. If a sovereign is attacked by subjects
having problems with the his absolutist manners, the sovereign responds
in a way that was in the beginning of Discipline and Punish scandalously
contrasted with the daily proceedings in a correctional home about half a
century later. Even if the latter is a document listing rules instead of the
description of actual punishment, and the examples are related to differ-
ent infractions and different subjects, the contrast is nonetheless illustra-
tive.. Robert-François Damiens, in an unsuccessful attempt at regicide,
stabbed Louis XV with a penknife; Damiens was, according to the verdict
issued on 2 March 1757, to carry a burning torch in a cart that would
drive him to the scaffold, where his flesh was to be
plucked from his breasts, arms, thighs, and calves with incandescent
pincers; his right hand, holding in it the knife with which he had com-
mitted the said parricide, was to be burnt with the sulfurous fire, and
on the places where his flesh would be ransacked, molten lead will be
poured, boiling oil, and above that, burning resin, wax and sulfur mol-
ten together, and then his body would be drawn and dismembered by
four horses and his limbs and body consumed by fire, reduced to ashes
and his ashes thrown to wind (Foucault 1975, 9). 7
Sovereign power understands and practices punishment as a retribution
for challenging the prevailing order. The same knife returns with sulfur
to the body chipped in stages, wild horses and knives dividing the bigger
chunks, fire pulverizing the body to ashes, and wind dispersing it across
the land into nonexistence—or into a larger mutiny thrown back into the
sovereign’s face like the content of the urn in The Big Lebowski that, with a
touch of grim humor, came flying back to the protagonists since the wind
blew the other way. It is augmented revenge; the sovereign is, as Fou-
cault writes, present in the judgment and its execution with his decision,
not ultimately giving up the duty he delegated to the courts, since he can
retract his decision anytime and show mercy instead of unleashing his
power to crush the subject. This power is an armed power, maintaining
order the same way it wages war, understanding insubordinations as an
act of enmity (Foucault 1975, 58–66). It is a power annealed through
250 Chapter 4

punishment. Punishment is of the same order of legality as the right to

wage war on the enemies. The justice of sovereign power is an armed
justice, intimately associated with the shiny and often bloody metonymy
of droit de glaive: “The sword that punishes the guilty is also the one that
destroys the enemies” (Foucault 1975, 61).
Disciplinary power is something that develops historically in a longer
period, as Foucault tries to show, especially with the example of France in
eighteenth and nineteenth centuries. The body of the condemned and its
torture is replaced with training and the production of docile bodies, a
multitude of the isolated within the perspective of the political history of
the body (see Foucault 1999, 199; 2001c, 1622). Although all punishment
is to be observed and “measured” in practice, and on the spot where it is
executed, this type of power is to be found searching aux niveaux plus bas,
both historically and in the present, confirming the Nietzschean pudenda
origo associated with the body as a focus of analysis—shameful and petty
origins of bodily discipline, both in its sources and its everyday function-
ing. This type appears in the capillary bottom-up processes where time,
space, and the body are controlled more efficiently and, as a conse-
quence, the body becomes more productive—in the army, school, factory,
or prison. It is no wonder, as Foucault argues, that these institutions look
alike in architecture, organization, and their daily routines. The “new
political anatomy” was not a sudden invention or change but a result of
the “multiplicity of often minor processes of different origin, dispersed
around, which cut across each other, repeat, imitate or support each oth-
er, distinguishing themselves according to their domain of application,
converge one with another and bit by bit, draw a pattern of a general
method” (Foucault 1975, 162–63).
Whether it is the case of rankings, timetables, division of rooms, or
training of the body to perform tasks is of less importance—all of this is
categorized as the art of disposition and the surveillance of action. By
these powers combined, disciplinary society emerges from the bottom
up. The swarming disciplines merge with governing structures that ap-
propriate, and prison functions as an apparatus of power and, famously,
knowledge (Foucault 1975, 149). 8 Romantic bandits evading the king’s
forces are replaced by controlled criminals with a police record, political-
ly harmless and mundane, unlike the heroic haidouks of the past and the
romantic banditry of Gil Blas. The panopticon as a concrete architectural
design devised by the busybody Bentham, organizing in space an ideal
circular structure of cells exposed to surveillance both from the central
tower and the outside, is, according to Foucault, not only an onirical
structure but a diagram of this type of power and its mode of punishment
staging a divided correction of the isolated bodies. Historically, lepers
were excluded and the plague put a city to a halt with the surveillance of
movement—La lèpre et son partage; la peste et ses decoupages—it is the part-
ing to isolation versus the disciplinary chopping of the space (Foucault
 Punishment and Power 251

1975, 231), with the panopticon literally implemented in some prisons,

from the historical Austro-Hungarian Empire to socialist Cuba, but not so
widespread in its ideal form, that took disciplinary power to a new level,
combining these two historical principles of exclusion and discipline.
Punishment is discipline here, an element of the functioning power
that does not seek revenge but dressage, a correction of the subject that is
at the same time put into various discourses that extract the truth—be-
yond the law as a proclamation of sovereign’s will or lofty idealism of the
enlightened penal reformers. The state of one’s soul is scrutinized by
psychiatric evaluation as a form of power (Foucault 2003); the subject is
governed through social work, correctional programs, and, as we shall
see, Lombrosian criminology as the science of crime born together with
the control of now-tamed violence, redescribed as crime. The small soul
of the criminal with his dossier has replaced the older figure of the vile
regicide, branded, burned, and cut to pieces. Foucault writes of a new
inquisition in developing this corps of work where power and knowl-
edge are not externally associated by ideology or interest but are pro-
duced and legitimated together; knowledge becomes a constitutive ele-
ment of les rapports de pouvoir: 9 “We belong to an inquisitorial civilization
which, already for many centuries, practices extraction, movement and
cumulation of knowledge according to the forms that are more and more
complex but all derived from the same model. The inquisition: form of
power/knowledge essential for our society” (Foucault 1972). Jail as a
symbol of monarchical whims is now everywhere as a modern prison, in
this scheme as a cornerstone of the penal system and one of the ultimate
ostensible penal consequences of the disciplinary system. And Foucault’s
treatise, with reference to political fantasts like Fieschi or the morbid
romantic crook Lacenaire, and with bizarre excurses on cellular vehicles
as mobile prisons, ends up with carceral society being dismantled in the
new forms, a complex array of forces, discourses, and bodies engaged in
an open game of power, where one can hear le grondement de la bataille—
the roar of the battle (Foucault 1975, 360).
On the one hand, there is punishment of the subject; on the other, the
mesh controlling it. The mood of the Kurosawa’s warring states films is
replaced with the mood of One Flew over the Cuckoo’s Nest. But what about
the aggregate picture: Is there governance? How does it look like and
work, beyond the systematic taming of agnostic disciplines? According to
Foucault, there is such governance. His initial name for it is biopower
(biopouvoir). The concept refers to governing the population as a multi-
tude of living beings. Generally, it is juxtaposed to the sovereign power
that owns the subject to his death. It is, as we have seen in the first and
second chapters, a historical and theoretically elaborated power to take
life, a power to kill. Biopower has the opposite goal: it makes you live, it
fosters life. It can, of course, be inefficacious but technologically speaking,
alongside the anatomopolitics of the body, Foucault adds the biopolitics
252 Chapter 4

of the population, while some others may include resistance to such pow-
er and so on, distinguishing biopouvoir and biopolitique although Foucault
uses the terms synonymously, at least in his lectures, speaking about the
novel technology of power (Foucault 1997a, 216, 218). It operates in the
milieu—that is, not on a singular case but generally deploying means that
should have a statistical effect, be it birth rate, epidemiology of a disease,
or crime numbers. Although one can trace the politics of numbers back to
Aristotle, the discussions of constitutions and community size, and vari-
ous strategic considerations associated with war, defense, and conquest,
the systemic statistical reasoning and intervention of public policies into
social security, public health, and sexuality is modern. It is the heart of
biopolitics to systematically make a population live healthily and secure-
ly, to police sexuality, to administer vaccinations, and to do other similar
things; it is “the set of mechanisms by which that in the human species
which constitutes its fundamental biological traits, enters within the in-
side of politics, a political strategy, a general strategy of power (Foucault
2004, 3).
This is an underdeveloped concept that thus has both a limited and
virtually unconstrained applicability—ranging from administering agri-
cultural subsidies to cosmetic genital surgeries (Rodrigues 2012)—but is
still interesting. It was initially offered in the last lecture of Society Must be
Defended, and in a chapter of the first tome of The History of Sexuality, as a
part of the plan that was later abandoned to pursue hermeneutics of the
subject in Antiquity and ethical considerations concerning ancient sexual
practices. It still lingers in Security, Territory, Population lectures and is
kept in the title of The Birth Biopolitics that deals with liberalism and
governmentality as a form of pastoral power to which I return in a mo-
ment. The question is: how does one develop punishment from such a
thing beyond a metaphorical joke that to live in such a controlled world,
devoid of adventures, is punishment enough by itself? This form of pow-
er offers a more convoluted but interesting story and a sort of deus ex
machina maneuver. One must remember that for Foucault such mode of
power appears as a combination of historical forces; it is not a transepo-
chal investment of life with politics, as in Agamben’s appropriation of the
term (Oksala 2010; Lemke 2010). The trick is, if one thinks about the
working of power on the population, to think about the punishment of
the population as such, not as individuals but as a collective of traits. But
which population? Biopolitics has to do with public policies that combine
various means and work in the social milieu meddling with life itself,
caring for public health and securing a certain population with social
policies—but those outside of the definition of the population might get
in trouble. In dealing with others, this power may take the destructive
form called thanatopolitics or thanatopower—the politics of death. While
pogroms and genocides are a historical constant seconding wars and
states of exception, the specific rationale here is given within the dis-
 Punishment and Power 253

courses of biopolitics. It is state racism as an ideology that makes a dis-

tinction between those who have to live and are made to live, and those
who are defined as harmful and should be eliminated as a population to
give space to healthy bodies.
The most famous historical example of this comes from the eugenics
of the Nazi regime where gas chambers were first tested for euthanizing
the patients in the mental institutions later to be used on a mass scale in
“the final solution.” The Nazi regime was, in Foucault’s words, a combi-
nation of sovereign power and biopower, a “combination most naïve and
most cunning at the same time” because it combined “phantasms of
blood with paroxysms of a disciplinary power” (Foucault 1976, 197). It is
a regime where the leader, a part of the body politic, is surrounded by
hailing hands: he is a living will and living law of the organic biopolitical
community, not standing above as a transcendental sovereign operating
with individual or collective retributive punishment. The term appears
already in the works of a Swedish Rudolf Kjellén, who in his The State as a
Form of Life conceptualized the nation in organicist terms as a cooperating
collective of living beings in the battle of survival, organized as a state,
which is together with other Lebensformen to be subject to the biopolitical
scholarship, as he recounts writing already at the beginning of the twenti-
eth century (Kjellén 1917, 38). Hans Reiter, a champion of “racial hy-
giene” who conducted medical experiments on the camp population, ex-
plicitly also spoke of biopolitics, and it was a part of the official discourse
that the future of the nation was determined by biological heritage and
healthy race. Agamben, following this and other discursive episodes and
Nazi policies, called the Reich “the first radically biopolitical state”
(Agamben 1998, 83–85). And since Foucault’s understanding of state ra-
cism is pretty wide, it is possible to apply the concept and its derivatives
in other totalitarianisms, to use the liberal Gleichschaltung terminology—
for example, in the Soviet Union under Stalin, where the new Soviet man
was launched as a biopolitical ideal, where birth of the new was paired
with a complete ruthlessness toward the old, as captured by the phrase of
“living ideas and dead bodies” (Prozorov 2013).
Just as a living being, le vivant, can be produced by politics, it can also
be killed, crushed, or erased, ideologically designed as threatening the
healthy people’s body, the Volkskörper, specifically the quality of race
from which, speaking within this discourse, all other ephemera emanate
such as economy, culture, spirit, politics and so on. Radical punishment
awaits those within the people’s body who don’t match up. They are to
be sterilized or “liquidated,” in a worn-out euphemistic metaphor, or in
ambitious expansive movements cleansed and erased on a mass scale,
punished as lesser beings in expanding the Lebensraum for the superior
races deserving biopolitics. Citius, altius, fortius, as the Olympian motto
has it, but with thanatopolitics eliminating the unwanted contestants
from the race. In this context it is the function of racism to establish a
254 Chapter 4

caesura in the body of population; for example, Germans should live and
those who are in the cynical practice of bureaucracy ascertained as Jewish
should die, following the retarded and the lunatics into the gas chambers.
The road from biopolitics via eugenics and race hygiene to Auschwitz is
paved in punishment that should especially forbid and sanction the mix-
ing of the races. It is not the punishment of those who question sove-
reign’s will but the punishment of living beings as such for being on the
wrong side of the demarcation line.
Pastoral power is another form of power relations that appears in
Foucault’s lectures. Generally, it is juxtaposed to sovereign power as the
form of power ruling over territory. Pastoral power is not interested in
territory but is directed to the subjects omnes and singulatim; it speaks to
each and every one of them, leading their souls (Foucault 2000b). This
general motif can be divided into two more concrete historical versions or
components—the religious and the secular—for which examples can be
given, but the concepts are wide, and as in Foucault’s analyses, can be
combined with other forms creating nominalistic hybrids in concrete stra-
tegic situations and tactical operations. I give the examples of Christian
pastoral and of neoliberal governmentality and try to suggest some forms
of punishment that can be derived from them.
Foucault’s claims about Christian pastoral power are far reaching. He
argues how the occidental subject was individualized through the pasto-
rate. Security, Territory and Population introduces this idea, and subse-
quent lectures concerned with “the government of the living” specify this
as they research antique techniques of the self that defined the form of
conscience and self-knowledge: “The subjectivation of Western man, it is
Christian, not Greco-Roman from that point of view,” Foucault writes;
instead of the abolition of the self, as in Buddhism, Christianity does the
opposite, turning everyone into a little Oedipus, a careful spirit in the
treacherous flesh, subjected to daily rituals of self-examination, obliged to
tell the truth (Foucault 2012a, 170, 188, 231, 306). There is a division of
power associated with this modus operandi of power in contrast to its
sovereign counterpart: “The Western sovereign is Cesar, not Christ. The
Western pastor is not Cesar, but Christ” (Foucault 2004, 158–59). That is,
after all, one of the meanings of one of the more famous parts of the
synoptic gospels, prescribing to give the king what is his, and to God in
what is His: “Render unto Caesar” (Matt. 22:21). This further develops
into an argument about techniques of development and the governing of
subjects in the West. Confession plays an important role as the ritual of
power and subjectivation, which has its religious and more recent secular
forms, as Foucault argues in the first part of The History of Sexuality, in
both cases subjecting humans through extraction of truth. It is the already
mentioned motif of an inquisitorial civilization although less negatively
connoted. The subject who makes the statement is at the same time the
object of the statement of this soul-searching, often induced from above
 Punishment and Power 255

The recurring question for us in this section is: how do we connect this
to punishment? It brings us back to the gray zone of the extremes out-
lined in the introduction, such as exomologesis, at the same time penance
and imposed ritual, a punishment in the sense of a compelle intrare opera-
tion, forcing one into the Church for eternal salvation of the soul but at
the same time demanding active participation from the subject who has
to externalize his metanoia or follow an invisible internal sacrifice with
the external sacrament of punishment (see Foucault 2012a, 197–210, 301;
Foucault 2001e, 1626–27; Carrette 2015). The philosophical derivation is
roughly the following, as offered in the lectures on The Hermeneutics of the
Subject (Foucault 2005): while the Antic guru, who operates by the maxim
“This is the truth you see in me,” is the one who leads and speaks within
the relation of power in this world, Christian salvation on the ontological
level posits two worlds, this one and the next, which is the real one and
more important for the eternal soul. Salvation is the right passage to the
other world, and it is not defined by the subject himself but by a historical
or a metahistorical event such as the moment of original sin or Christ’s
incarnation as God and man at the same time, justified in a classical
theological piece by Anselmo that explains Cur Deus Homo. It is thus, as
Foucault explains, an operation requiring two elements or subjects: the
Savior, Soter, is demanded for salvation, a transhistorical figure, practical-
ly and historically represented by the Church, and a subject who searches
for the truth of sin inside himself and who seeks to transcend it in a
radical change of being (against less dramatic acts of autodisciplinary
power, daily self-punishments derivable from the stoicist documents of
the Hellenistic era closely read by Foucault, aiming at self-mastery, the
famous enkrateia, against the dangers of the lack of self-control).
The more practical aspect of this ontology of salvation is that, al-
though some versions speak of sola scriptura and no earthly bridges be-
tween conscience and god—one of the tenets of primeval Protestantism
anyway—Christ has an official messenger with an earthly authority.
Consequently, historically more than in present, the Church, endowed
with pastoral power and a metahistorical mission. has a right and a duty
to punish the flock it leads. Today, at least in the West, this is diluted into
an appeal to conscience as an interpellated instance of punishment and to
penance as a mode of punishment. To take a recent example of an old
tradition, in Catholicism, the Easter vigil and sacrament of confession are
especially important. Pope Francis, in a sermon opening Holy Week dur-
ing the mass for Palm Sunday, one week before Easter, asked Christians
if they are loyal to Christ or if they would betray him like Judas. Unlike
Simon of Cyrene who helped Jesus with the cross, Judas’s treacherous
kiss served as an interpellation by the high pastoral power on the celebra-
tion of the date when Christ, unlike earthly sovereigns conquering the
cities on an illustrious horse and with a sword, entered Jerusalem on a
donkey and with few olive branches:
256 Chapter 4

Who am I? Who am I before my Lord? Who am I before Jesus who

enters festively into Jerusalem? . . . Who am I, before Jesus who suf-
fers? . . . Am I like Judas, who pretends to love and kisses the master to
hand him over, to betray him? Am I a traitor? Or am I like the disciples
who did not understand what it was to betray Jesus? . . . they fell asleep
while the Lord suffered. Is my life asleep? . . . Am I like Simon of
Cyrene who was returning from work, tired, but had the good will to
help the Lord carry the cross? Am I like to courageous women, and like
the mother of Jesus, who were there, suffering in silence? Am I like the
two Marys who remained in front of the tomb, weeping, praying? (Le-
nartowick 2014)
The story continues; many other characters were evoked in St. Peter’s
Square in 2014, until the Angelus prayer at the conclusion of the Mass:
Pilatus, Pharisees, and the crowd in a ritual of ghastly punishment, more
in the style of pornography of violence than symbolic sublimation, as
portrayed in Gibson’s dramatic rendition—a punishment that was also a
God’s will, following Christian theology and theodicy of sin and its re-
demption. As if this interpellation by the pope referencing the characters
connected with the passion of Jesus called for a publicatio sui, an exomo-
logesis, an alethurgy of sinner as sinner (alèthurgie de pécheur comme pé-
cheur), a theatrical and public self-humiliation, an induced auto-punish-
ment of every sinner, who should search for his soul and publish and
purge its sinful content.
Governmentality (la gouvernementalité) is a term that largely replaced
power in Foucault’s lectures of the late 1970s, but it can be observed as a
specific type of power. The term was initially coined by Barthes, en pass-
ant in one of his observations about everyday mythologies as un néologis-
me barbare mais inevitable, “a barbaric but inevitable neologism” (Barthes
1957, 203). The term was appropriated by Foucault with a different mean-
ing and the old intention to critique the straw man idea of the state as a
cold monster. It roughly meant conduct of conducts, conduite des con-
duites, governing of the people (see Foucault 2012a, 13–14), which meant
introducing to the old notion of capillary and omnipresent disciplinary
power a macro-perspective, specifically a center, a Lacanian name of the
father in the middle (see Newman 2004). However, instead of a head of
the state, the conception was again a bit decentered, as it was to be ex-
pected from Foucault, who under the term subsumed the heterogeneous
ensemble of both epistemological or discursive and practical phenomena:
the ensemble of procedures, analyses, tactics, of calculations developed
and used in the governing of the people associated with political econo-
my and the apparatuses of security (Foucault 2004, 111–12). Historically
in Europe, this has to do with the doctrine of the reason of the state and
cameralism, and it is developed in the analyses of various strands of
liberalism as governing ideology and of a post–World War II welfare
state (Rose and Miller 1992). Instead of “etatization” of society, for Fou-
 Punishment and Power 257

cault the point is in governmentalization of the state, blurring the usual

distinction of private and public, and referring to the governed autono-
mous individuals who, in later Foucault’s discovery of subjectivity,
breathed easier in spite of various early posited discursive and other
constraints (Foucault 2004, 47).
Although this narrative can be linked to biopolitics as well, since both
concepts relate to the governing of the population, one of the historical
sources of governmentality or its closer conceptual analogy is pastoral
power pointing to the specific political authority of a leader governing a
multitude of subjects. 10 A religious version of this power is teleological,
and has a goal of saving the people, such as when Moses led the Jews to
the promised land (which brings up the theme of transformation of pas-
toral to sovereign power), or it can be metahistorical, such as the case of
the Messiah bringing eternal salvation. A secular variant is not that far off
in its eschatological layers: liberal governmentality is for some the end of
history, promising richness and self-realization through free transactions
on the market, communication, and the exchange of goods and ideas
instead of war, conquest, looting, and rape.
How do we make a punishment of economic liberalism, an individu-
alizing power of a secular pastorship? How do we tailor a penalty from
Le Gendre’s response to the minister Colbert and the famous motto lais-
sez-nous faire, simply, let us do our business? If one accepts that power
produces, changes, and transforms subjects, many powers doing so si-
multaneously in concrete societal settings (Foucault 2001d, 1510), one
already comes at principal odds with punishment as a tool of power that
constraints, diminishes, or destroys challenges to an order. And when
power allegedly governs by letting go of the economic subjects to enlarge
their profits? It is in this case hard to calibrate Foucault’s conceptual
scheme into a set of “operational tools for description of the present”
(Paltrinieri 2013, 50), but here goes:
Punishment or something similar—I am not quite sure it is encom-
passed even by the broad introductory conceptual work—can tentatively
be found somewhere along the compound dispositifs of security paired
with the trope of individual responsibility in governing, leading to the
normalization of a member of the population in the process of the pro-
duction of secondary political natures. If governmentality is a form of
historically secularized pastoral power, it may not work through the pe-
nal sanctions that are left to Caesar—if you break the rules of market
transactions, for example, if you steal or rob, you go to jail. Punishment in
governmentality has to be more subtle. It will work, in a neoliberal ver-
sion, as a transfer of responsibility to individuals both in public and
private venues, as a technology of the self that traverses the boundaries of
the old politico-theoretical distinctions. Instead of the state caring about
security, the main thing, like resilience in the Oprah Show, is the transfer
of responsibility to the individual subject, who has to make decisions to
258 Chapter 4

evade misery, famine, and disease. Quality management, performance

measurement, benchmarks, and various revisions and inspections
swarming around are all techniques of governing, external tools checking
the responsible subject. They constitute a secular conscience as an in-
stance of punishment that screams about the consequences of not acting
responsibly (i.e., diligently and productively), but they may even con-
strain on the basis of calculating risks in advance, which brings us more
soundly under the conceptual umbrella of punishment, even if it, in the
science-fiction manner of the Minority Report, opens up space for sanc-
tioning of the subject in advance, a dystopian punishment that precedes
the crime. In a sense, homo penalis becomes homo economicus, punishment
is replaced by the conscience of economy, and probation becomes a gen-
eral model of discipline catching subjects who may lapse, like individuals
in Alcoholics Anonymous checking each other and calling for help when
temptation is nearly irresistible. This is not paternalism, but an individu-
alized struggle with Darwinist consequences as punishment: change
yourself and do the best or be punished by a losing result in a game with
other Darwinist subjects of competition who will do better, prosper, and
survive. Punish or perish becomes produce or perish—which is punish-
ment. We therefore have punishment as a self-responsibilization and its
consequences, and punishment as an economic concept taking into ac-
count economic forces, as did Gary Becker, the 1992 Nobel Prize winner
for human capital, who counted the costs and benefits of a drastic crime
of parking at a forbidden spot and getting a ticket. 11
In search for punishment within this framework, one must also look at
capillary empirical practices, that is, at the implementation grounds of
the penal system invested with governmentality strategies. Gradin Fran-
zén’s study of detention homes provides an example, as a study that
“takes an interactional approach and focuses on responsibilization in prac-
tice,” focusing on “the particular and detailed behavior modification
practices: self-assessment training, where the residents are asked to iden-
tify problem behaviors that should be altered, and then, on a daily basis,
to scrutinize, evaluate, grade, and reward their own behavior”; she con-
cludes that this shift “reconstructs the disciplinary action as something
much like parents socializing children, rather than prison guards enforc-
ing discipline or punishing delinquents” (Gradin Franzén 2014, 85). This
research also points to the ambivalence of the concepts of reward and
punishment in such a setting, and more generally, in situations where the
lack of punishment may be seen as a reward and the lack of reward as
deprivation, that is, punishment. Gradin Franzén calls it a “paradox of
rewards and punishments” that “entailed paradoxical notions of the tokens
used in the system as they were primarily conceptualized as rewards for
desirable behavior, but these very rewards (tokens) could also actually be
withdrawn in order to control undesirable behavior (Gradin Franzén
2014, 78). 12
 Punishment and Power 259

I conclude this section by singling out several things that are impor-
tant when thinking about this specific framework for interpreting power
and punishment as phenomena closely knit together. First, this frame-
work suggests a synchronic combination of powers instead of their dy-
namical succession, leading to various punishments at the same time as
various mechanisms of power work simultaneously. Second, emanating
from power, punishment is political and administered in a specific place:
think about the local and keep the bottom-up perspective. Third, the
framework is not a straitjacket but a line of thinking to be amended,
changed, and abandoned to preserve it (if one has the stomach for such
dialectical phrases).
Although there are trends of strengthening and waning of powers for
various reasons, the types do not necessarily point to an epochal array;
they do not appear and disappear in a historical succession but may
appear together, coexist in a complex set of relations. As explicit as it gets,
this is stated by Foucault: “there is not a series of successive elements, the
appearance of the new causing the earlier ones to disappear. There is not
the legal age, the disciplinary age, and then the age of security. Mecha-
nisms of security do not replace disciplinary mechanisms, which would
have replaced juridico-legal mechanisms” (Foucault 2007, 8). The tidy
triads are thought of as analytical distinctions: as the leper was dealt with
by exclusion, plague by disciplining that tries to control and stop move-
ment, smallpox by inoculating the population after calculating the risks
both of vaccination and nonvaccination, or as the sovereignty dealt with
territory, discipline with the body, and security with the population (Fou-
cault 2007, 10–11), so it is with punishment. In a “very childish example”
that Foucault provides: first, penal law forbids actions defined as crime
and punishment is applied to the transgressors; second, an ensemble of
surveillance and control techniques are applied even before the illegal act
as well as penitentiary techniques of correction after the act; third, all of
this does not disappear but is in certain cases altogether governed by
considerations of the crime rates, statistical predictions, and policy goals
of keeping crime within certain limits that do not disrupt an equilibrium
of social functioning (Foucault 2007, 4–5).
More importantly: this coexistence, especially today, is not left short
of empirical corroboration. I develop this more thoroughly in the next
section, dealing with torture as punishment and with a case that I know
the best, which exemplifies the effect of war and state formation—a par
excellence political event, a feast of political power—on punishment. The
work of disciplinary power is not in question. The same goes for various
biopolitical apparatuses and governmentality technologies that in con-
nection with demographical movements, epidemics and migrations, pub-
lic health and social security, produce the excluded and the included,
sometimes with subtle form of punishments, sometimes with bare life in
a detention camp or death along a smuggling route. I offer several exam-
260 Chapter 4

ples to corroborate something perhaps less obvious: the idea that sove-
reign power is not only a constitutional remnant of high executive pow-
ers, of commanding the army when it comes to that and giving mercy as
provided by many constitutions, but a working force that builds up in the
modern epoch, especially in times of war, conflicts, and disruption of
routines. It then comes close to the extreme, a power devoid of modern
penal discourses, executing hard punishment: “The terror, it is precisely
the governmentality of the naked state, cynical state, obscene state. In the
terror, the truth and not the lie is the one that immobilizes” (Foucault
2012a, 17). If stripped to the bone and utterly cynical, the power would
be, as Foucault implies in a better-known passage, unbearable (Foucault
1976, 113): he is right, but in certain conditions, power comes closer to its
historical reductions of more overt subjection and annihilation of its ene-
mies.
All the rule of law discourse put aside, Osama bin Laden was not
arrested and tried, but killed. It was an executive decision in the course of
the war on terror. The enemies still have bounties on their heads and are
sought dead or alive, or more exactly, located with the new “emperor’s
eye,” an instrument of sovereign power married to panopticism. Al-Qai-
da’s leader’s body was burned and ashes dispersed across the sea; the
execution of this extrajudicial death sentence was celebrated by high offi-
cials with a bottle of 1870 Chateau Lafite. As numerous reports and ex
post facto exegeses show—the problematic is not without ambivalence
reflected in popular culture in the form of movies such as Zero Dark Thirty
and TV series such as 24—no important clues were found via torture,
even though torture and humiliation in various jails was often done with
no rational motive. It is not tactics or gathering of information but some-
thing that happens, not spontaneously or by virtue of mere individual
sadistic agency, but within a framework set or tolerated by the governing
structures, paralleling the death penalty and draconic prison sentences
administered through due process within the country. Police can torture
and the army can perform the functions of the police. In a highly reveal-
ing 1975 radio interview with Jacques Chancel, Foucault speaks of “a
functional movement of torture,” stating how in our society torture did
not disappear (Foucault 2001f, 1664). Our acquaintance from the histori-
cal chapter, General Aussaresses, spoke about the situation when he ar-
rived in Algiers: torture was a practice that he disliked but it was general-
ized, and he was at peace, accepting it if it had to be done and claiming
that he would, without remorse, do the same thing again in the same
situation (Beaugé 2013). The point is not in cynicism of an old, hardened
general who confessed he did not torture personally but killed or author-
ized killing, but in the cynicism of power: it functioned that way. And the
same normative critique applies as before, not only from the perspective
of renouncement of cruelty but from the perspective of political efficien-
cy: it is discontinuous, provoking rebellious reactions and often impotent
 Punishment and Power 261

outside of its singular destructive applications of force. It is a primitive

political technology and its punishment may miss or backfire in its face.
Guantanamo, briefly treated in the introduction, can be seen as a mix-
ture of sovereign power of torture and disciplinary power of controlled
taming, with the parallel practice of beating, more technical torture, and
force-feeding. Many more poignant examples where sovereign power
“reappears” can be named. Measured by practices of noninstitutional
violent punishment, recent developments in the Middle East and North
Africa reflect this pattern. The paradigm is the one of sovereign dictator-
ships crumbling with the prominent help of outside interventions. They
produce smaller feudal counterparts in a quasi-anarchic setting and lots
of semistructured punishment. Take, for example, political assassinations
on the territory that was once known under the name of the Great Social-
ist People’s Libyan Arab Jamahiriya, today known under shorter label as
post–Qaddafi Libya, where disruption of order produced a war of pun-
ishment. To use the usual Western terminology, the Islamic militants
tended to practice punishment on the official apparatus of power that
traditionally administered punishment on them: “More than 100 promi-
nent figures, senior security officials, judges and political activists have
been assassinated in two years, and the wave of killings is decimating
local leadership and paralyzing the government and security forces. . . .
Political assassinations have become so systematic that officials, legisla-
tors and activists from the region describe them as a concerted campaign
to extinguish Libyans’ hope of building a stable, functioning, democratic
nation” (Gall 2014).
On the other hand, news reports from war-ridden Ukraine, to offer
another example, were rich in indicative vignettes of violence and pun-
ishment. Manifestations of people’s justice were not lacking. It is a form
of sovereign power on the move, accompanied by the vintage theater of
punishment; in the media, we have seen a customs official in Chop tied to
a pole, and members of the police force that beat and killed protesters on
the Maidan seeking absolution from the new sovereign, while the pro-
testers shouted “shame,” as in Cersei’s walk. Or less pathetically, the
temporary director of the Ukrainian national television was beaten by
members of the right-wing party in a shorter version simply called Free-
dom (Svoboda), until he resigned. He was called Russian scum while, sub-
jected to blows during a prolonged session of maltreatment, he in vain
claimed that he is Ukrainian. The interesting feature of this vigilante
political punishment session is not that Panteleymonov was not Ukrai-
nian enough for the Ukrainian right, but that the session was filmed and
posted online by the political party that spawned the proud squad con-
ducting the beating. Ironically, one of the historical fascism-style bullies,
Igor Miroshnichenko, was a member of the parliamentary committee for
freedom of speech. Miroshnichenko claimed that they had done nothing
wrong and accepted a formal investigation into the event. The informal
262 Chapter 4

punishment was an act with the claim of political legitimacy—the beating

by the squad—and a lame formal epilogue. Again, we have the organiza-
tion, modality of action, discourse of bare sovereignty, might-claiming-
right, and public display of violence: all of this suggests the punitive
work of sovereign power.
Even depontifications appeared in the news—punitive sessions in-
volving threatening, beating, and throwing a person off a bridge (which
reminded the author of the legendary John of Nepomuk who was thrown
off the Charles Bridge in Prague into Vltava, to forever bathe with the
octopods in a fountain in Kranj—and all of this to show us how sovereign
power deals with pastoral power when the latter allegedly refuses to
disclose the confessional secrets of a queen in love). Even if staged propa-
ganda in the course of the ethnopolitical conflict, a possibility of their
truth, of same and worse amassing, makes it a symptom of the situation.
It is the return of violence and punishment where sovereign power oper-
ates on the body, punishment again understood as a public ritual of pain
and shame, sending a message to all the others who could suffer the same
fate, with the unspoken old political theology and new executioners and
torturers, technicians of the contact between the sovereign’s body—
king’s or people’s, it comes to the same thing from the perspective of
punishment—with the body of the condemned, without the luxury of
bodily distance offered by the more up-to-date virtual pillories (Ronson
2015) of online public shamings and revenge porn games of punishment
and power.
This brings up the second point stressing that punishment, from the
perspective of power, is primarily concrete and local since the relations of
power are of such a nature that they exist not only in the state as a whole
but in every institutional or extrainistitutional setting, in every school,
family, or prison, and in every relation of at least two people brought
together in a social exchange. The discourse of power, violence, and pun-
ishment must focus on concrete politics, on capillary practices, and their
explanations that go far beyond naïve idealism or official formalities.
Punishment is a political ritual emanating from and serving a mechanism
of power, but as such it is always administered by agents on the spot—
where big plans crash or proceed differently than envisioned. It is the
cited problem of implementation (Pressman and Wildavsky 1984) that,
whether this is explicitly accepted or not, is an intersection of politics and
conflict. If we observe government’s actions, we see that a Wilsonian
conception of administration as a neutral tool of political power, a service
efficiently applying decisions made on the top, does not always apply. In
studying punishment and power, it is not only the constitution or gov-
erning ideology that is important, but the electric chair, the prison rou-
tine, and the terrorist attack framed as punishment or a subpolitical slap
on child’s buttocks that is taken as normal or problematized as child
abuse: every practice of punishment imaginable, observed as a local
 Punishment and Power 263

event with actors who are not automatons of higher cleavages but inter-
pret them, use them, or ignore them in their own struggles. To reiterate,
the lesson from Lipsky’s classical study on “the street-level bureaucrats”
who develop coping mechanisms in their handling of the cases and inter-
actions with clients and in that process create the factual policy, can be
applied to punishment: it is created or even coproduced on the spot. This
can be briefly illustrated by literature on political violence, as already
suggested in the introduction, where even the Holocaust, a grand scale,
horribly efficient execution of historical punishment on a multitude of
people for an imputed metahistorical sin and for reasons of a racist ideol-
ogy, doesn’t eschew the logic of local tactics, struggles, and decisions.
The important thing is not what had to happen or what must not have
happened, but what actually did happen at the various sites of violence.
In a morbidly cynical but nonetheless consequent academic metaphor,
the question becomes one of how a policy of mass killing works, whether
through formal or informal channels (King 2012). Referring to the in-
fluential writings of Stathis Kalyvas on the complexities of civil wars and
political violence, this literature stresses the local grievances and conflicts
that use the so-called master narrative. Instead of the psychology of a
ruling tyrant or aggregate political relations and other variables of power
that may and do influence violence and punishment, the questions are
more in the later Randal Collins style of situational dynamics, the exact
timing of violence and the actors involved in the “genocidal targeting” as
a form of diffuse violent punishment politically organized and imple-
mented in space and time as a form of cruel public policy:
A state policy of mass killing is developed over time. The roots of any
governmental action might lie in the distant past, in the childhood of a
key leader, or in deep cultural predispositions. But there is no prima
facie reason to believe that even the most abhorrent form of public
policy—the decision to liquidate an entire category of person—pro-
ceeds in ways appreciably different from its more benign counterparts
(King 2012, 330).
To be sure, the big narratives about politics and violence are at stake here.
Kalyvas (2003) provocatively argues against the older and more recent
classics, Hobbes and Schmitt. In the specific pandemonium of a civil war,
it is neither the central decisions of friends and enemies, a top political
move in the Schmittian sense, that determine violence, nor a chaos of
anarchic private violence of bellum omnium contra omnes usually associat-
ed with Hobbes as a potential model of relations when a powerful
enough sovereign is absent. The violence that has to be explained in such
a situation is neither entirely political, in the narrower Schmittian sense,
nor entirely private, in the Hobbesian sense. It is a muddle somewhere in
the middle that requires careful empirical observation and explanation
that does not abstract too far from the facts. It is, in other words, a schol-
264 Chapter 4

arly discourse of “it is important to get a more precise picture,” that of

course has an implicit antinationalist and anticollectivist political agen-
da—a small, not especially hidden “should”—but that is perfectly appli-
cable to any form of punishment associated with the nuanced relations of
power against the Political master cleavage written with a capital “P.”
Even the highly formalized bureaucratic systems, going from Eichmann’s
“management” to gas chambers, include a set of political relations, deci-
sions, resistances, and executions. There is Eichmann and there is roman-
ticized Schindler, as Spielberg’s famous film reminds us (even if it is a
piece of kitsch according to Kertész). Sometimes it is nearer to Schmitt,
sometimes to Hobbes, and sometimes even to Wilson’s administration
carrying out political decisions, but the real situations usually eschew
these ideal types of structuring of violence and punishment; it is rarely if
ever a perfect “we vs. them” homogeneity, a perfect chaos of “everyone
vs. everyone,” or a perfect obedience of the subordinated, abolishing
politics in the other way.
The third point is the openness of this framework for the new. The
only thing pivotal is perhaps, unless power itself becomes powerless and
all things cease as in Kant’s deeper meditations, the idea that power is a
good starting point to observe punishment. The rest is left to transforma-
tion, combinations with other hypotheses, as advanced in chapter 2.
There is persistence in the work of power and practices of punishment
and this framework still works, but it is not to be taken as immutable, in
the same way as the dogmatic reading of Foucault’s account as a narra-
tive about historical and epochal longue durée of transformations was re-
jected. It is to take one of Foucault’s informal titles of a “theoretician of
the present” at face value, that is seriously, as well as his courteous pro-
posal to use his ideas as flexible tools. The theoretical story here is neither
about the past nor is it everlasting, but is instead a pragmatic nominalistic
tool beyond the quest for perfect coherence; one is interested in who gets
what, when, and how, where something is enabled, and where some-
thing is disabled or closed, in all the imaginable venues and settings of
power. This is then held as a provisional constant, guiding research ques-
tions about violence and punishment. If power is nominalistically under-
stood as a name for a strategic (and tactical, taking into account tempo-
rary, contingent, and local) situation in a society, shifting and changing,
then the framework is by definition open for change (see Kusch 1991,
129). We should here remember that, at least in a specific sense, Foucault
does not develop an ontology, “the theory . . . of what power is, but of
power” as “an ensemble of mechanisms and procedures” (Foucault 2004,
4).
This position against a unity of constituted power displacing it with
the multiplicity of “capacities, possibilities, forces” (Foucault 1997a, 37)
pairs well with the methodological criteria developed by Foucault (Fou-
cault 1976, 121–35). To the extent that these criteria speak of specific
 Punishment and Power 265

content (and they do), they are helpful guidelines to be seen as a provi-
sional compound hypothesis about power: the famous and worn-out
rules of immanence (discourse married to power, which cannot operate
on itself), continuous variation (shifting of power relations and spreading
of discourses), double conditioning (contingent relationship between
macro- and micro-levels, the strategic and the tactical), and tactical poly-
valence (a discourse enabling different tactical operations). The question
is, of course, how these or some other games affect punishment today. It
is the idea of power operating beyond, beneath, and beside the law— as
stated in Foucault’s Les mailles du pouvoir lecture and elsewhere: a juridi-
cal view of power is “a conception . . . totally insufficient, a juridical
conception, a formal conception of power” that approaches power from
the vantage point of a legal sociology (sociologie juridique) or “ethnology”
focused on taboo and prohibitions (Foucault 2001b, 1002–3). However, to
go beyond the law is not at all to exclude it, which would be ludicrous
since the discourse of law is an immensely powerful force itself; however
often it is breached and ignored, overblown and distorted, its importance
and seriousness do not have to be explained, as we still live in the civil-
ization of law (see Hunt and Wickham 1998; Golder 2013) where, unlike
in Foucault’s vignette with George III, of psychiatric power subduing the
troubled sovereign, even psychiatrists can go to jail for malpractice. Simi-
larly, to go beyond the state does not mean to ignore the state (Foucault
2001b, 1008; Jessop 2004). Power is forbidding but also producing and
enabling. To sum it up, almost anything goes, difference, combination,
avoidance, a unity of the mechanisms of power analyzed to understand
violence and punishment better. In Foucault’s metaphor, we face the “ex-
istence of regions of power. The society is an archipelago of different
powers” (Foucault 2001b, 1006)—unless they should unite, if empirical
research says it is so. Instead of circling further within this familiar dis-
course of nominalism of powers and punishments, I shall illustrate the
possibilities of change and hybridization by two examples, extreme on
their own grounds—an abstract but ultimately empirically grounded
philosophical reflection, and a science fiction movie that, speaking of the
near future, speculates about trends today. Alas, hardly anything seems
to fit better together than Deleuze and Robocop, a philosopher of technol-
ogy and a fictional police cyborg.
In a short piece written almost a quarter of a century ago, Deleuze
writes how Foucault’s societies of control, epitomized in disciplinary ar-
rangements of the factory, school, and prison, succeeded societies of sov-
ereignty; the organization of production through power replaced the re-
pressive taxing and killing performed by the sovereign if necessary. Un-
like, as Deleuze reminds the reader, in Rossellini’s Europa 51—a neoreal-
ist classic where a saint played by Ingrid Bergman is put in the context of
postwar Italy to end up in the asylum for trying to help the poor and
disenfranchised, observing that factory laborers look much like prison
266 Chapter 4

convicts—this closed society exists no more. In a development of events

that took off after the Second World War, Deleuze observes how “disci-
plinary society was what we already no longer were, what we had ceased
to be” (Deleuze 1992, 3).
There are some charmingly anachronistic parts in this short piece—for
example, “Everywhere surfing has already replaced the older sports”
(Deleuze 1992, 6)—and Deleuze gets the essential part about coexistence
instead of succession wrong (it’s an empirical question after all: prisons
are alive and well, as are many other disciplinary institutions and tech-
nologies). But the overall point that tries to catch the change of the insti-
tutions beneath the perpetual lamentation of their crisis is still interest-
ing. With the advancement of technology, codes and passwords replaced
watchwords. Cards and chiffres of accesses, which allowed and denied
entrance, replaced guards’ gazes, creating another form of enslavement
where “Man is no longer man enclosed, but man in debt” (Deleuze 1992,
6). The metaphor with Christian connotations, attaching slippery sin to a
theologically unfortunate craving reptile, is used to describe the shift that
accompanies developments in a capitalist economy where “coils of a ser-
pent are even more complex than the burrows of a molehill” (Deleuze
1992, 7). The point for punishment in this context is not only that elec-
tronic collars in the forms of bracelets and anklelets have long gone from
science fiction to reality and that technology as a form of power affects
punishment, paired with the untiring energy of “the entrepreneurs of
punishment” (Feeley 2002), but that new forms of control supplement
older barriers and by prevention and control accompany the old punish-
ment of affliction of the body and blockage of movement. There are spe-
cialized serpents eating moles and rodents. However, the idea here is not
the one of devouring but that the creatures coexist and reproduce in new
and unimaginable hybrids, giving the name of mole snake a whole new
meaning, digging and meandering in the post-Fordist globalized econo-
my. The order of disciplines that emanated from below in Foucault as
punishment and power are both connected with the social and economic
context. Discipline and Punish could not to do without industrial capital-
ism, while control, as a functional supplement to punishment, offers
some hints how develop this scheme to accompany newer developments.
Deleuze highlights here that punishment cannot do without economy,
and that Foucault cannot do without capitalism. The same point—which
may come as a surprise or raise a skeptical eyebrow—is made by Robo-
cop.
As for fictional examples as a trademark of this treatise, I cannot help
but choose José Padilha’s intelligent remake of Verhoeven’s 1980s classic.
Padilha is the author of two films about BOPE, 13 a special police force
trained for urban warfare, and a documentary about a bus hijacking (Bus
174), making a trilogy of violence and punishment in Brazil, where vio-
lence seemingly erupts as a systemic feature but not in any simple way
 Punishment and Power 267

offered by more paradigmatic leftist readings (such as Haneke’s films

discussed in the following chapters). As for Robocop, the reverberating
Internet question whether the new suit sucks or not can be put aside for a
moment. The setting is intriguing for a social and political reading be-
yond the puerile aesthetics of Kant’s third critique caressing a shiny cy-
borg’s armor. Administration of violence is provided, if not controlled,
by a big, US-based, multinational corporation operating combat drones
around the world in US peacekeeping missions, while their usage is for-
bidden in the United States by a Dreyfus act, echoing the Dreyfus affair in
France of false accusations against a Jewish officer, provoking Zola’s in-
dignation of J’accuse. However, where drones are not allowed, a hybrid
cyborg is allowed as an experiment to test the Dreyfus act, a robocop,
mixing mechanics and emotions fluctuating with the dopamine levels.
Following Verhoeven’s original from the 1980s, which offers dilem-
mas of the time—crime panics, police, and punishment of the Reagan era
in the United States, the city of Detroit inundated by crime and chal-
lenged by dysfunctional public institutions, and the evil bosses of private
corporations that enter the law enforcement and corrections market—the
new version offers new challenges. No need to enter into the intricacies of
the plot about a cyborg policeman fighting the crooked cops, or reflect on
the corrupt TV hosts delivering corporate propaganda paired with con-
stant public polling mocking the real deliberative democracy, since
everything important for us here is present already in the first scenes.
Desperate guerilla fighters in Iran under a US peacekeeping mission act
as suicide bombers fighting against freedom-enforcing drones. “Opera-
tion Freedom Teheran,” 14 as it is labeled on the Novak Element talk show,
a Fox News style of show that supports crime-fighting robots in the coun-
try. Television lauds the drone operations that replaced the anachronistic
mode of “risking lives to pacify these people” who happily work “in
collaboration with the robots,” while, for all the parties, safety is “highest
priority.” The discourse of the film sets the propaganda of the brainwash-
ing TV against the facts of the terrain, where the robotic gaze looks
through the clothes of a headscarfed woman who returns the gaze back
with a scornful grimace. It is the world of guerilla fighting and suicide
bombers risking their lives to destroy the machines. Instead of Goliath
being killed by David, we have a large robot gunning down a desperate
boy armed solely with a kitchen knife. The point is not only that capital-
ism and its profit-seeking organizations influence public interest and eve-
ryday lives, nor it is just a critique of risk-averse American neoimperial-
ism ultimately operating on a remote-control destruction. The point is
also in the possibility of mechanized on-the-spot punishment, adminis-
tered almost as a parking ticket or a fine for a misdemeanor in an admin-
istrative manner rather than through a judicial procedure. It is, on the one
hand, futuristic; on the other hand, it is historical, as were the authorized
daimyo governed by the code of honor when executing a criminal on the
268 Chapter 4

spot in Japan. As the archaic method of erecting walls is used on the

borders to keep the migrants out in various countries across the globe—
however, nowadays bringing together sovereign exclusion, disciplinary
surveillance, and biopolitical control (Nail 2013, 110)—the newer technol-
ogies appear ready to enter the field of violence and punishment. Robocop
has violence produced and then controlled by the surplus of technology
and economical needs. Beneath a blockbuster surface, it is an intriguing
fictional study of power, violence, and punishment.

TORTURE, STATE BUILDING, AND PUNISHMENT: THE REMNANTS

AND RESURRECTIONS OF SOVEREIGN POWER

Two reasonably short but more detailed examples than the pictures scat-
tered earlier further illustrate the probing of extremes in the perspective
of power and punishment beyond the abstractness of philosophy and the
elusiveness of fiction. I first reflect a bit on torture, which still takes place
today despite the widely professed faith in peaceful democracy, and then
I briefly outline some associations between punishment and power in the
1990s Croatia. These two cases further illustrate the applicability of the
schematics we have already explored, not as a general theory—there are
probably concepts and discourses that encompass much more in a more
elegant way—but as a fairly capacious story that works reasonably well
in a particular set of cases.
It is wrong to see torture as an abandoned practice of penal policy that
existed in more brutal times, abandoned long ago and lost under the silts
of longue durée changes, after it was theoretically dismantled by the En-
lightenment, most notably by Beccaria. One day it may be so, but at the
beginning of the twenty-first century torture is not just historical. It is not
reserved solely for private sadistic encounters. It is contemporary and
political. It is punishment, an infliction of pain on the body with political
pretensions and a collective effect on the social body, with obscure and
unspoken legitimacy. It was pompously official in history and often pub-
lic, a spectacle of fear. It is performed out of sight today, but the spectacle
of fear still remains; it communicates efficiently to the target populations
as a possibility and a practice displaced from the judiciary and the formal
executioners to the police, prisons, army, and paramilitary units, and,
with all possible disclaimers, to various venues of the politically usable
private criminal power that has its followers and subjects as a parapoliti-
cal structure with the old principles of silence and vendetta (see Kalyvas
2015). Whether it is Latin American gangs and cartels or various South
Italian organizations, they know how to send the message—and it is not
mere execution or a severed horse head discovered in silky blankets.
While a tidy distinction can be made according to historical forms of
torture as a means of extraction of information and confession through
 Punishment and Power 269

fear and pain, and an end by itself, induction of pain for pain’s sake, its
arguable inefficacy in the first function as a procedural means (see Lukes
2008) makes this analytical distinction hard to maintain in practice. Coet-
zee has it right in Waiting for the Barbarians: it is not a narrow means of
extraction of information, as the case of his magistrate shows, humiliated
and tortured, thrown in the dungeon by the military forces of the state of
exception. Its function is instead to show the subject how human dignity
depends on the body, and how fragile it is before power—describable
within a framework of here expounded Foucauldian categories (see
Petković 2015)—breeding nihilism since it destroys what Giddens would
call ontological security, or with more pathos and less theory, a funda-
mental trust in the world (Améry 1980, 40).
We have already acquainted ourselves with the sociology of “cruel
and unusual” punishment in the second chapter, involving some hints
and suggestions of why it happens. Patrimonial power and high stratifi-
cation made torturous punishment possible in history, structurally induc-
ing state violence framed as punishment. Although indexes of social and
economic differences still show high disparities in economic assets, cultu-
ral and social capital, the culture of vibrant democratic age described by
Tocqueville, who observed the prison system, society, and politics in
nineteenth-century America, makes the standing of the subjects more
equal, at least within the confines of the nation-states. It is generally
harder to torture today. The social substrate from the ancient empires
and class and status differences from historical Europe are absent today,
which is probably as important as humanistic ideas advocating the
change of punishment, as suggested by Collins (Collins 1974, 421). Thus,
the more plausible contemporary answer may be found in Moore, point-
ing to political operations substituting more lasting structural differences,
which are still there as various other distances but probably do not
amount to sufficient conditions to release torture. Although historically
transcended as a public procedure codified by the positive law of the
state—if we bracket some uneasy cases from the comparative chapter or
define history in a more normatively ambitious way, perhaps with some
reference to Hegel interpreted à la Shklar as an Enlightenment thinker—
the question of this section is why and when does torture still appear
undercover but visible, as a hidden secret. While various sociodemo-
graphic differences will play a role, Moore’s linking of such different,
historically and geographically remote, phenomena—the gladiator spec-
tacles of Rome, pogroms of the Jews and the Holocaust, and lynching in
the American South—as in essence the same may offer a clue.
The comparison may appear as scandalous due to the differences in
specific causes, between the things themselves and the sheer quantity of
the victims, but these extreme feasts of violence seem to have one thing in
common. Moore connects them with a simple idea, making a political
point of Levinasian ethics appearing in chapter 8: if for some reason, a
270 Chapter 4

section of the population is dehumanized as less worthy Others, based on

social, ethnic, and other differences—or in spite of the lack of such differ-
ences—a climate is created in which it is desirable to get rid of the “social
waste” and this might be done through political operations of ideology
and propaganda. Brutal killing, a feast of torture, can commence. Moore
reminds the reader of various social differences: in ancient Rome hones-
tiores were in general less sternly punished than humiliores, and educated
bureaucrats in the Celestial Empire could generally expect milder pun-
ishments than the common people of the land. He also points out that
some practices were strongly condemned, such as parricide striking at
the pillar of patriarchal order, but his important point is that cruel and
unusual punishment, of which torture is a chief example, is potentially
present when dehumanization of the individual or group subject of such
a punishment occurs through political operations. Consequently and
ahistorically, “this behavior can crop up just about anywhere under the
right conditions” (Moore 2001, 739). This dehumanization can appear in
the starkest forms—and it is perhaps an essential part of the business
there—in various specialized subsystems of society pertaining to orga-
nized force (or, for some, violence) dealing with deviation. The low vis-
ibility of prisoners and detainees, their loss of equal status due to things
they have done or simply for belonging to the stigmatized and often
literally disenfranchised category, a weak group in terms of social con-
struction of policy (see Schneider and Ingram 1993), makes them an easi-
er target of torture in the hands of police in the style of Jon Burge and
prison guards. And, of course, ethnic, religious, and ideological conflicts
and wars, where military and paramilitary units backed by intelligence
services and agents who act in specific situations, offer conducive ground
for torture, no matter if one or more of the forces involved are labeled as
pluralist democratic. This is where the paradox of democracy and torture
appears and where several remarks about a book important for this chap-
ter are in order.
Perhaps it is an overstatement, but Torture and Democracy is a capital
work, a real leviathan of comparative punishment, specifically torture;
below the legal framework and judicial protection of human rights by the
concert of states, Darius Rejali, an American scholar of Iranian descent,
describes how the historical theme of torture survived, retreating from
the agora and moving into the dark chambers (Rejali 2009). Torture has
changed much, often acting on the body in a more subtle manner, not
breaking it and making it bleed but inflicting pain without visible marks
on the surface. This is expressed by the distinction between the infliction
of pain through clean techniques contrasted to scarring techniques, while
Rejali insists that the first ones are not psychological in the narrower
sense but are also physical—for example, blows administered in such a
way as not to leave marks, or painful strikes of electric current that can
 Punishment and Power 271

make a victim lose consciousness from pain but do not leave bruises.
Why are clean techniques quite popular nowadays?
It seems that this change in torture is in tune with Pinker’s argument,
but perhaps a more accurate description, with his Lincolnian metaphors,
would be a picture of hypocrisy where better angels don’t combat the
devils but keep flying over them with closed eyes. This trend of “clean”
torture may not come solely out of liberal democracy—a specific system
of power whose connection with torture Rejali principally investigates—
but clean torture combined with stealth is something specific for the
modern age, with other regimes alongside liberal democracies that want
to scare the targets without too much bad publicity in the international
arena. The book offers explanations of these developments, offering some
challenging food for thought within the chapter on discourses on power
and punishment, the book itself being one of them.
First of all, many interesting extremes of the modern age are offered in
an impressive and precise catalogue of techniques. Because of the theme
and untrustworthy and indefinite sources as a basis for making conclu-
sions, the skeptical reader must bear in mind the problem of “misleading
and unreliable data” that the author mentions himself (Rejali 2009, 6). But
what is clear is the general picture of torture as a widespread practice in
various subsystems as suggested. From the simple definitional issues of
torture as a low-tech craft (Rejali 2009, 18) transferred through “back-
room apprenticeships” rather than through any kind of science (if anyone
could have imagined such a science at all), we arrive at the more poetic
lines inspired by Scarry, of torture as driving “into a prelinguistic si-
lence” and a “world-destroying” venture, or to a more prosaic typologi-
cal picture of “regimens” or “national styles of stealth torture,” such as
Russian or French colonial, aided by the categories of imitation and hy-
bridization, as well as with the policy transfer of various spillovers in the
comparative arena of torture, where torture arrangements and tech-
niques travel from the colonies to the center, and even from professional
careers abroad back to home—for example, when police officers torture
their family members in private sessions of punishment or apply their
army-acquired torturing skills in police work (Rejali 2009, 434–35).
The genealogy of these techniques really conforms to the Nietzschean
pudenda origo: they emerge and are used in various settings to be trans-
ferred to other venues, the real Foucauldian techniques behaving some-
what in an evolutionary manner spreading and proliferating according to
their advantages or needs of the torturers, be it torture under democratic
public pressure, more generally dealing with its targets in stealth, or a
slave-owning economy where scars bring down the market value of the
speaking disenfranchised tool (Rejali 2009, 9). And this picture of the
developing world of torture abounds with grotesque items such as the
Khmer Rouge interrogation manual (rationally choosing torture as the
last option) or accounts of sleep deprivation used by more classical witch-
272 Chapter 4

hunting instances since drowsy states were thought to be good states in

which to make the pact with the devil manifest, as that gentleman tends
to work best in such a muddy atmosphere where the superego is in a
complete knockdown. The process also observes the ironies that appear
in retrospect, such as the anecdotes of Palestinian Arab mouth-feeding
the tortured Irgun fighter, a terrorist tortured by the British colonial po-
lice and calling Britons “savages” (Rejali 2009, 30). Rejali shows how
torture today appears in discourse and is highly skeptical of the “arm-
chair philosophers” of torture who sprout like mushrooms after the rain
when the state of exception needs some extra legitimization for torture.
And, important for us, the narrative places torture within the wider gene-
alogy of punishment, where ducking as the British customary punish-
ment of both the nagging women and astronomers who made false pre-
dictions continued as police torture in India, where water from the sacred
rivers is hardly lacking.
It is indeed an impressive catalogue of techniques rich with historical
extremes but in order to not to be led astray by various juicy details for
this treatise in general, I focus on three important themes that are impor-
tant within the confines of this chapter: the concept of torture, linking it
to punishment; typologies explaining its function and problematizing its
relationship with democracy; and, finally, its connections with power
more generally. What exactly is torture, and why is it punishment? Taken
by itself, not combined with other arrays of violent punishments, it can be
defined in contrast with two extremes—genocide and war. As a concept,
it distinguishes itself from them by the lack of intention to kill and by a
hierarchical relationship of the powerful inflicting it on the helpless, the
latter being completely in the command of the former:
It is not genocide because it does not aim to kill victims; indeed, torture
is judged to fail when prisoners die before informing or confessing.
Likewise, the practice is not war. In war, soldiers confront each other as
free, equal agents on a battlefield, where they act, honorably or not as
the case may be. In torture, soldiers or other state officials act upon
individuals who are helpless. Soldiers may wound many civilians in
war, but it takes a qualitatively different intent to stick a knife into a
captive’s wound. (Rejali 2009, 37)
The goals of torture are pain and fear, the first working individually on
the body, psychologically mixed with the second (fear of the person tor-
tured of escalating torture and/or death), and then spreading to the recip-
ient population of potential tortures (another subject’s fear of torture),
let’s say simple secular persons, not especially wanting to become mar-
tyrs like the average Christian saint or Archbishop of Canterbury, inscrib-
ing themselves into eternity. Among other things, Rejali draws on Elaine
Scarry’s phenomenological treatise on torture but is also careful to distin-
guish his approach from hers by putting the practice of torture into the
 Punishment and Power 273

political context interesting for us here. Scarry stresses the inexpressibil-

ity of pain induced by torture with an eye for various interesting details,
drawing, for example, on Solzhenitsyn’s The First Circle where a simple
and dehumanizing “diabolical rule” emerges—the demand that prison-
ers keep their hands outside of their blanket—as one of the natural and
often unnoticed things taken away by the craftsmen of torture within
their general strategy to use the prisoner’s body “in its physical strengths,
in its sensory powers, in its needs and wants, in its ways of self-delight,
and finally even, as here, in its small and moving gestures of friendship
toward itself.” In other words, the body is “like the prisoner’s voice,
made a weapon against him, made to betray him on behalf of the enemy,
made to be the enemy” (Scarry 1987, 48). This is worthy of a further
meditative passage.
Pain is immensely important but it is not all of torture and punish-
ment. It is one of the defining elements of punishment, and especially of
torture as the titles of the works dealing with the subject, such as the Big
Book of Pain, suggest. That significant point made earlier and in the intro-
duction that pain is more or less inexpressible is probably overempha-
sized in Scarry: “To acknowledge the radical subjectivity of pain is to
acknowledge the simple and absolute incompatibility of pain and the
world.” She continues: “Pain annihilates not only the objects of complex
thought and emotion but also the objects of the most elemental acts of
perception” (Scarry 1987, 50, 54). While Scarry also draws an analogy
between torture and war, deducing torture’s form from its function of
symbolical destruction (Scarry 1987, 61), the treatise is not functionalist
but more of a humanistic belles letters kind, aesthetically exploring inex-
pressibility of pain as a source of creativity, perhaps on the trail of Witt-
genstein’s paradoxical remark that what cannot be spoken about would
have better been—indeed, for early Wittgenstein, searching for the per-
fect language within the genre of logical atomism, it’s an imperative—left
in silence. While creative spirits always try to jump over this obstacle, for
good or for bad, Rejali’s more mundane approach, immersed into com-
parative torture policies, is careful to make some important distinctions.
According to the simple equation driving this chapter—that a change
of power usually also leads to a change of punishment—contemporary
sovereign powers, constrained by public opinion just as slave owners
were by their economic reason, change their modes of punishment to be
more secretive so that it gets harder to read their inscriptions on tortured
bodies. Rejali placed Scarry’s concerns in such a context. He speaks of
“doubts, uncertainties and illusions” that clean torture techniques pro-
voke, claiming that “it is possibly not accidental that Scarry’s important
study appeared in the mid-1980s, when these kinds of clean techniques
began spreading worldwide, and her focus on expression was a first take
on an important phenomenon” (Rejali 2009, 443). But the clarification of
this position, putting punishment in the context of power, puts torture in
274 Chapter 4

conflict with state’s legitimacy: “The inexpressibility that matters politi-

cally is not the gap between the brain and the tongue, but between vic-
tims and their communities, a gap that is cynically calculated, a gap that
shelters a state’s legitimacy” (Rejali 2009, 31). A mutilated body is bad
publicity, and torture is administered in a political setting where fear and
insecurity mix with the messages of official reassurance. Everybody
knows it, but it is not seen and not confirmed beyond doubt within the
wider population. It could be, probing the conceptual scheme laid down
in this chapter, that sovereign power is both omnipresent and hidden,
accommodating its informal punishment tactics to the new realities of
public space ideologies and the facts of the civilizing process.
Things become especially interesting when torture is analytically
broken into types. This is the next step in elaborating our problem. In
Rejali’s simple trichotomy: “Torture can be used in three ways: to induce
a false confession, to cause fear, and to elicit true information” (Rejali
2009, 446). As I see it, the first two functions merge together, while the
third, according to Rejali and in opposition to his archfoe Dershowitz,
doesn’t work too well in practice anyway. With simple sadistic retribu-
tion added on the spot and paired with wider legitimacy of punishing the
Other—enemies chosen on various grounds are punished, not friends—
the practice clearly qualifies as punishment. As Pinker has it, treating the
subject: “Sadism can grow out of instrumental violence” (Pinker 2007,
417), especially if it is politically induced. Rejali offers some lines that fit
into this reading. It is not punishment as a rational means in the realm of
general prevention but is a much cruder known fact having an effect on
the population. Torture is then, perhaps, a punishment with a function,
“an open secret to people who live in many societies,” and as Rejali
continues (outside of the Foucauldian lingo we here adhere to), “thesis
that torture in modern democracies has nothing to do with the disciplin-
ing of citizens reveals a surprising unfamiliarity with the place of torture
in the globalized world in which we live” (Rejali 2009, 444–45). Torture
persists, as Rejali tries to answer, because of the “myths lodged deep in
the political and cultural anxieties of modern societies. . . . Torture may
not appear in every national emergency, but as long as modern democra-
cies embrace these myths, torture is never far away” (Rejali 2009, 445).
This myth is not instrumental efficiency of torture but a political theology
of sovereign power.
But how exactly to conceptualize the relationship between torture and
democracy from this perspective? The relationship, according to Rejali, is
firm. Democracy appears as a basis, or a cause, to use the stronger episte-
mological language, for clean torture to develop. Rejali’s goal is to uncov-
er the “largely forgotten history of torture in democracies at home and
abroad,” involving two hundred years of developing traditions and
transmissions of torturing techniques: “I maintain that states, especially
democratic ones, turned to covert torture earlier than they turned to
 Punishment and Power 275

stealth in other kinds of violence, and torture by stealth spread more

widely and involved a greater variety of techniques” (Rejali 2009, 4).
Unlike speculation about democratic peace, where democracies find
themselves in the role of not waging wars one against another, here the
venerated D-word appears as the civilizing force of hypocrisy at best, a
superficial taming of the work of the sovereign power, making its marks
less physically visible. The other side of coin, however, is caught by the
label of authoritarianism, in comparative politics denoting systems that
are placed somewhere between democracy and more ideologically satu-
rated totalitarianism, lacking the omnipresent totalitarian leader and the
party, and keeping power through tactical means such as the manipula-
tion of elections and repression instead of a total ideology mobilizing the
masses. Torture is a part of it, as in the case of the torture stadium of post-
Allende’s Chile. For Rejali, the other side of coin fits neatly into this
theorizing: “These states were far less accountable domestically and
internationally for the violence they performed, and so there was no
percentage in using techniques with no marks. What mattered most was
whether the torture was painful; whether it left marks or not was a curi-
osity” (Rejali 2009, 12).
If we accept torture as punishment, not as rational means of Machia-
vellian intelligence services, we again see in this a confirmation of the
hypothesis that different systems of power induce different forms of pun-
ishment. Rejali is careful to nuance this hypothesis, having in mind the
vicissitudes of torture techniques that travel and transform through space
and time across the authoritarian–democratic divide that is, as I argue, at
least in some very important cases hard to maintain anyway (think of the
state of exception). He comes up with the Popperian black swan of de-
mocracies not torturing clean, or torturing clean only later, and authori-
tarian regimes torturing cleaner or earlier than expected according to the
posited rough distinction:
One tempting alternative hypothesis would be to argue that regime
type explains these outcomes: democratic states (for whatever reason)
always prefer clean electrotorture, while authoritarian states do not
(the regime type hypothesis). But not all democracies are clean in their
electrotorture in the early twentieth century. In the 1950s, the British
used electrotorture in the context of a violent, scarring regimen that left
many Kenyans broken for life. Conversely, some authoritarian states
become cleaner in their torture over time. The South Vietnamese inter-
rogators, for example, became increasingly more careful in the kind of
evidence they left behind in the course of the 1960s. What matters in
these cases is whether the treatment of prisoners draws public attention
(Rejali 2009, 195).
In a way, the author is right, but the point is, first, that the distinction
between democratic and authoritarian pertains to a crude typology even
if one does not conceptualize power in a more sophisticated way. Trying
276 Chapter 4

to obtain legitimacy in the domestic and international arena is something

that enters the equation of virtually any power and when both the sali-
ence of human rights discourse and its hypocrisy and selectiveness is
high in terms of public attention. The variations are to be expected of
unclean “democracies” and clean torturing authoritarian regimes, hiding
their punishment from some audiences while reserving its political vis-
ibility for others. But the second point is that power is a fuzzy concept—
not only that hidden authoritarianism may on some scale jump in front of
the analyst’s eyes from behind the facade of democracy on a scale rang-
ing from national to local, in the center or, more likely, in a neocolonial
expository but also that one may need to change these categories com-
pletely. The problem is perhaps less in the names of the categories than in
the precision of the concepts. One gets, or one is able to get, a precise
picture thinking about implementation and governing mechanisms, tech-
nologies, and forces if one wants to follow Foucault anyway. Yet, even if
it’s fuzzy and dynamic, and power relations change as anything else, it is
still important to try to theorize about power accurately. 15
By virtue of several examples, let us now try to show how, beyond the
scrutinizing of the exact merit of his general theoretical remarks, Rejali’s
study is impressive where it should be—in empirical details and their
subtle interpretation helping us to think about the problems of power
and punishment. The Gestapo and the Battle of Algiers offer excellent
illustrations. The Gestapo vignette is instructive because it offers a combi-
nation of, as Rejali rightly states, the modern dissolution of torture proce-
dures from the law and the anachronistic nature of the techniques used.
Although torture was never highly formalized in the sense of law as the
expression of the general will of the people or a sovereign as its transcen-
dentally and traditionally legitimized governor, in the sense of the official
proclaimed sanction by a body of authority in line with law and customs
known in advance, decisions and certain practices were a formal right of
the prosecutors and executioners. By its eviction from public space, it
entered the realm of practice of the various expressions of executive pow-
er, including the army, police, and special or secret state police, as the
acronym of Gestapo has it. Geheime Staatspolizei did not go far from the
medieval tools of the trade because there was no pressure to hide any-
thing: not whipping, not torches, not suspensions, and not pressure. They
were modern in many things, but, endowed with special powers in exe-
cuting the will of the Führer transmitted through Reichsführer Himmler
and his subordinate Gruppenführer Heinrich Müller, epitomized in the
notorious Schutzhaft, and not subject to any judicial control in the sense of
administrative court, they were not induced to be creative in terms of
torture. As the Führer himself, Gestapo agents were to an extent legibus
soluti, exempt from law, unconstrained agents of sovereign power admin-
istering the force of the Reich on the body of various subjects designated
as political enemies, not worrying too much about quasi-Hegelian histor-
 Punishment and Power 277

ical march of liberal democracy and its hypocritical civilizing force in the
sense of La Rochefoucauld. This made torture simple, almost as classical
as Bach’s music, but also diverse, improvised on top of a repetitive struc-
ture as blues, in lack of a singular top-down procédé, that is, a conductor
precisely waving his wand:
Gestapo interrogators were modern in that they applied pain without
attention to what custom or law required. They expressed, like modern
torturers everywhere, the growing autonomy of their profession from
the law. Gestapo technique was also anachronistic, most closely resem-
bling the torture of seventeenth-century European states. . . . The myth
of the scientific Gestapo torture played on a predisposition to see Ger-
mans as efficient in everything. (Rejali 2009, 117)
The Battle of Algiers, however, is a story of torture offered by the
hidden sovereign power hypocritically accommodating itself to the disci-
plinary age, using the magneto—an electric shocker. It is a story of bot-
tom-up building of the technique that, as General Aussaresses’s nonre-
penting confessions exemplify, mostly “does not work,” as he had no
illusion of the effectiveness of torture in the sense of obtaining crucial
information. Rejali refers to the film of the same name, a famous piece
shot in the Italian neorealist style, “a left-wing movie” that “played to
packed audiences in the 1960s that cheered the FLN guerillas,” and that
perpetuated the myth of torture’s efficiency (Rejali 2009, 25). 16 Unlike
Aussaresses, who is implicated as the executioner in Rejali’s narrative—
the one who “hanged the imprisoned Si Millial/Ben M’Hidi with his own
hands in fear” while “in the novel, the revolutionary leader slit his wrists
in despair”—the veteran practitioners in Rejali’s account find comfort in
torture’s ideology: “the French veterans still cling to the notion that tor-
ture worked, producing timely information that saved innocents. Other-
wise they had committed war crimes” (Rejali 2009, 546). Things seem to
be a bit more complex, but Rejali’s interpretation of the film is spot on.
Ruthlessness and tactical action may be morally abhorrent, legally forbid-
den, and negatively sanctioned but effective in terms of winning: they are
something to be expected in a certain formation of power related to an
organization of war. Torture in this setting is an intimidating punish-
ment, a mixture of fear, pain, and confession to be expected by the im-
prisoned enemies, while its “know-how” is again of a nonlofty origin,
coming to Massu’s authorization from his officers’ practice, in the context
of longer and wider bottom-up history of torture techniques of the colo-
nial empire: “Algerian police had decided to adopt a stealthy regimen in
torture long before. . . . Local commanders, most notably Massu, eventu-
ally embraced it, and politicians learned to turn a blind eye” (Rejali 2009,
200).
In the conclusion of this case, I want to emphasize two final things: the
relation of craft to the sovereign’s policy in torture, and the question of
278 Chapter 4

trade-off between power and torture as punishment. Another metaphor

for torture as craft is found in the realm of textile handling, ranging from
an industrial uniformity of policy to its customary adjustments: “Tortur-
ers may treat all prisoners to the same standard violence; torture becomes
a ‘one size fits all’ operation, with predictable, ill-fitting results. Or one
can customize torture to the needs of the situation and the character of
the prisoner” (Rejali 2009, 197). While a careful reader should note there
is such a thing as a diffuse authorization and local interpretations of
central will that are left to punish and torture as they please, this unifor-
mity of tailoring of pain is a clear sign of a central sovereign policy of
punishment, although it is not amplified in public via the official gazette.
In Rejali’s book the so-called Nuremberg rule, referring to the
post–Second World War trial, is mentioned and also in length explained
in a response to journalistic investigation about torture by the British
forces concerning the so-called London cage in the Second World War.
Rejali’s answer comes with a reference to Gestapo we shall here omit,
since it was covered earlier:
You can prove something is policy in two ways. The top down ap-
proach is to find the document that authorizes the abuse, torture or
genocide. This is often hard to find. They are often classified, de-
stroyed, or demolished by war. The second way is the bottom up ap-
proach, and its axiom is the Nuremberg Rule which is foundational to
all human rights work done today. The Nuremberg Rule is: Uniformity
of practice indicates uniformity of intent. When the same practices ap-
pear in different places and times within a given country, or among a
series of prisons around the world, in cases of individuals who are
unknown to each other, it is hard not to conclude that there is a deliber-
ate state policy to torture. Applying the Nuremberg rule works quite
well in—for example—documenting the American torture regime—
strong similarities between Afghanistan, Iraq, Gitmo—everyone could
see that—and now we have the documents that confirm the bottom up
with the top down. (The Daily Dish 2009)
And finally, if the following agreement seems strange, it is nonethe-
less factual. Rejali agrees with Aussaresses in judging the flawed instru-
mental logic of torture. While the theoretical construction, and for sure a
case here and there, might corroborate its instrumental effectiveness, as
in the more profane apolitical encounters the information are obtained by
the fists of the bullies (people indeed sometimes tell the truth when
threatened, beaten, or tortured), on the practical level this can of course
be accepted. While it is a lofty thing to oppose an interesting hybrid
approach that may be called Arendtian pragmatism of “more power, less
force” (the message: reduce the brutal force if you want any power and
legitimacy), and realism, coming down to useless sadism, the normativity
or pragmatism misses the political logic of torture as punishment appear-
ing in conflicts. 17 The mighty sovereign showing muscles is a weak des-
 Punishment and Power 279

pot, as in Discipline and Punish, always at risk of losing power, but these
punishments on the body of the condemned have a long tradition. It is
not instrumental, but not at all far away from the political realism that
returns to feudal thugs and medieval procedures when a Schmittian
friend–enemy situation builds up, ideally in the state of exception. The
second case puts this within the context of political influences on penal
policy making and violence in the history of a country that, as countries
usually do, already forgot its beginnings, replacing them with heroic my-
thology. My country, right or wrong, once again: may I try to declare my
analytical cynicism in such a way?
Can state building be thought of as a natural experiment of punish-
ment? The answer here is positive. Although the scale of events and
reasons behind causes are different, the lesson of the situation is in es-
sence no different than Zimbardo’s point on institutional violence
reached by an experimental method. Experiment is said to be the queen
of method, although its outreach is questionable in the sphere of social
science. Like in computer algorithms where the rule “garbage in, garbage
out” is sometimes pedagogically invoked by those disappointed with the
outcome, it is similar with experiments in the sphere of the social phe-
nomena “testing” social variables: the rule “discourse in, discourse out”
applies. We test it in our frame of language and culture, with a limited
mind-set that observes and takes the results back into its own house of
language, where the things have started anyway. In moving history, “po-
sitivist” or any other, low-horizon precisions are at high risk only of
regurgitating the discourse of history at its particular point in time and
space.
It is not different when a contingent particularity turned into an irrev-
ocable fact sanctioned by experiment or contemplated on speculative and
metaphysical level by the likes of Hegel, opening up the space for a
similar, Marxian objection of “economy in, discourse out.” Perhaps Hegel
should have been put upside down to meditate on his head, as the saying
goes, since ideas only reflect the material basis of the reproduction of life,
and variables tested are but particularities of culture and contingency of
the situation, perhaps never to be repeated. In other words, a bit of Ror-
tyan ironist stance is needed, recognizing the limits of one’s vocabulary
and “arbitrary historical conditions of their own assumptions, thoughts,
and beliefs” (Wheeldon 2015, 398). But at least those big experiments,
even if the states are small, are a part of what is called historical reality
without the artifice of the small-scale staging, and involve a mass of
actors in a wide and changing discursive setting that is not controlled or
directed by a single intelligence but happens in a real setting of large-
scale mutual adjustment, power, and violence—and, of course, punish-
ment, both in and out of the official channels of the penal system.
That said, I briefly present a case of changes in punishment in the
1990s Croatia. In a story that is still subject to controversial interpreta-
280 Chapter 4

tions, Yugoslavia dissolved in a bloody war. Croatia, one of the former

Yugoslav republics, gained wide international recognition and joined the
United Nations in 1992. It became a member of the Council of Europe in
1996 and finally joined the European Union in 2013. If we divide Croa-
tia’s recent history into periods before and after 2000, we will see two
institutionally different types of government, semipresidentialism and
parliamentarism, and a wider picture of a relatively clear divide between
semiauthoritarianism that took shape in the context of state making dur-
ing the war and immediate postwar context, and peacetime democratiza-
tion processes paired with a bit more of pluralism, economical changes,
and EU accession. If the state can “use violence against its citizens . . .
or . . . wield its monopoly of the legitimate use of force to constrain the
use of violence within society” (Krause 2009, 184), then the study of penal
policy and violent crime in such a context, as I argue, also sheds an
interesting light on the blurred lines between the state’s use of violence
and the building of a public order, both conducted by structures and
agents of punishment.
The point here is that this story can be sensibly told in the portrayed
Foucauldian idiom that fits the material, and vice versa. As I argue in the
second chapter, historical penal change is not irreversible, nor is the “evo-
lution” of power. The second premise important for this case is that “sov-
ereignty” has not survived solely as an juridical ideology of rule, serving
as an instrument of political battles or masking the order of disciplines
(Foucault 1997a, 31–34), but “sovereignty” and “discipline,” as real pow-
er orders in the Foucauldian sense of the ensembles of the mechanisms of
force, coexist in a dynamic equilibrium that can be changed (Foucault
2004, 10). Third, as this case shows, in certain historical and political
contexts, “old” power orders shaping penal policy can re-emerge, disrupt
the usual epochal equilibrium of power mechanisms, change penal prac-
tices, and influence crime levels; between systems of power there is coex-
istence, but also tensions and to a point a trade-off. Fourth, as argued in
the introduction, this implies a wide notion of penal policy, including
formal and informal politically legitimated mechanisms of punishment.
Fifth, providing a contextually sensitive explanation implies that histori-
cal penal practices such as torture may appear in new attire, be per-
formed by different agents on different places, but keep the same political
function within the order of punishment and power. It is then the men-
tioned “functional movement of torture” that applies to both cases: the
previous, pairing torture with democracy, and this one, pairing it with a
case of concrete war-ridden state making. 18
With these propositions in mind that further specify the framework
expounded in the chapter, the suggested hypothesis won’t be too much
of a surprise. In order to explain changes in penal policy and imprison-
ment, and levels of sometimes hardly distinguishable political violence
and violent crime that came about in the 1990s Croatia, to wane and
 Punishment and Power 281

gradually dissolve with the arrival of new decade, one should closely
look at political power. Underneath the Croatian historical narrative of
national emancipation and the Homeland War, very interesting tectonic
moves of penal policy took place, mostly without formal changes in insti-
tutional penal framework and penal law. They were, in part, produced
by a historical formation of sovereign-like power whose mechanisms of
punishment did not primarily resort to prison (which was considerably
vacated by the sovereign resorting to overgenerous politics of mercy), but
to political violence that reaffirmed the sovereign’s power and spilled
over into society. The relatively high levels of physical violence in a sig-
nificant portion of the 1990s thus became normalized as an integral part
of the functioning of political order. Together with its dismantling, when
they became historically and politically obsolete, the remaining struc-
tures of sovereign power and its various diffuse and disoriented agents
still produced violence, while mechanisms of disciplinary power re-
emerged and tightened around them.
Paradoxically, Croatian society could only then feel the drama of vio-
lent crime that was, generally speaking, lower than in the 1990s, when
higher levels of violence did not seriously disturb the general public
(even when one takes into account that combined disciplinary appara-
tuses tend to produce more comprehensive statistics of less fatal types of
violence, which were glossed over in the shadow of sovereign’s might).
Devoid of its former political function, the violence caused media-fos-
tered surges of moral panic in a public now obliviously concerned with
fresh “waves” of violent crime that was—usually contrary to the statis-
tics—depicted as “higher than ever.” Multiple reforms of penal code and
penal procedure code, police and penal policy in general, ensued, and
prisons gradually overfilled with prisoners, as the country advanced on
its way to the European Union. 19 In this presentation of the case, I focus
only on the emergence of sovereign power in its natural context of war
and put aside the rebuilding of the disciplines, new discursive forma-
tions, and penal economies that were formed and changed in the reshuf-
fling of order, including the introduction of probation, which reduced the
pressure on the prison system. It is anyway a never-ending story spar-
kled with paradoxes of violence when “less seemed more,” where old
discourses fight the new ones, and where the new labile and changing
economy of power and punishment is negotiated from day to day in
society, politics, police, courts, prisons, and probation service.
To briefly reiterate two essential concepts before connecting them to
their empirical operators, sovereign power is, essentially, a strong execu-
tive type of power, empirically traceable to contemporary power forma-
tions in special circumstances. It proclaims its rules over the territory and
demands the obeisance of the subjects in that territory, although it is not
that much interested in a peaceful, disciplined society since that is not
important for its perpetuation. De facto if not de jure, there is neither
282 Chapter 4

clear division of power nor sophisticated institutional barriers—that is,

no checks and balances in government, which is reflected in the sove-
reign’s politically driven and arbitrary disposition of punishment and
mercy (Foucault 1975, 65). The understanding of punishment is of the
rudimentary retributive type. The performing of punishment is not a
rehabilitative penological operation but a political ritual confirming pow-
er: “Its resentment, its spectacle, physical violence, excessive use of force,
meticulous ceremony—its whole apparatus, to put it shortly, was embed-
ded in the political functioning of the penal system” (Foucault 1975, 60).
This is opposed to the other ideal type, of disciplinary power where one
faces a wide range of disciplinary technologies that mutually support
each other and effectively control the population working in the whole of
the society. They are embedded in various state institutions and policies,
such as efficient professionalized police and crime containment pro-
grams. Grand-scale reliance on prisons is expected, as well as various
disciplinary measures, surveillance, and control techniques that appear
in different penal and parapenal institutions scattered throughout soci-
ety. 20
On the level of governmental organization, one might expect a correl-
ative division of political power, checks, balances, and partitions that
segment power and enable the disciplinary framework, its bureaucracies,
and its discourses to effectively shape penal policy without the interfer-
ing sovereign. Furthermore, at least in the last consequences of an ideal
type, the picture of swarming disciplines and docile “souls” could leave
the political center of the regime empty, as in the paradigm of panoptic
surveillance where no actual guard in the central tower is needed, in
stark contrast to the majestic figure of the sovereign granting mercy or
punishing the bodies of the political convicts in a ritual that affirms and
elevates his might. Thus, if sovereign power builds up, violent punish-
ments will re-emerge, especially when the state or other political forma-
tion is in war, together with a greater tolerance for societal violence, and
when disciplinary power consolidates, one might expect stricter control
of violence, both of penal agents and societal actors, paired with more
proliferated and segmented formal penal policy, involving various or-
ganizations and discourses, together with higher public and media sensi-
tivity for “depoliticized” violence.
I now describe the political complex of sovereign power that was
formed in 1990s Croatia, aside from the formal framework of penal policy
making that held remarkable continuity in high correlation with its rela-
tive unimportance.
The first thing that is interesting to note in the Croatian case is that,
despite the political and historic events described, there were no signifi-
cant formal changes in the penal policy framework until 1998, when the
new procedural and material penal codes came into power. Clauses of
the penal law were simply taken over from the old regime. Penal policy
 Punishment and Power 283

structures such as police, judiciary, and prisons formally remained the

same, while changes more or less amounted to shifts in ideological vo-
cabulary that are expected when social and political systems are chang-
ing (i.e., expelling words such as “socialist” from the names of the institu-
tions). Paradoxically, abolishing capital punishment, which is usually
highly significant, was not so important in the Croatian context. Al-
though the last death sentence in communist Yugoslavia was executed in
Croatia in 1987, the death penalty was in fact extremely rarely imple-
mented in the last decades of Yugoslav regime. 21 Its abolishment was
simply a formal requirement of the new Croatian constitution of Decem-
ber 1990 that proclaimed the general right to life for all human beings in
its territory and explicitly forbade capital punishment, in order that Croa-
tia might accede to the political family of Western European nations.
In other words, in the field of penal policy, everything had seemingly
stayed the same. However, similarly to the famous di Lampedusa’s theo-
rem of fallen aristocracy, everything had changed at the same time. 22 In
the dawn of war, and especially during the war, as the semiauthoritarian
political order emerged, penal policy was radically altered, working
through informal channels beneath the formal framework that retained
continuity with penal norms of the ancien régime. In addition to the
institutional centralization of power provided by the constitution, power
was further accumulated and centralized in the hands of the president
(Zakošek 2002, 111–14) and presidential regulations typical for the state
of exception were proclaimed (Kosnica 2011), providing extra powers for
police forces and military courts, legalizing the formation of reserve mili-
tias and prolonging judicially unauthorized detentions. Yet sovereign
power largely worked outside of any law, through what might be called
four momentums of power that encompass the different political opera-
tions that constituted the framework for the informal penal policy, close-
ly intermingled with political violence.
The first momentum was the overgenerous and politically employed
politics of mercy that developed in the 1990s and worked both through
singular executive decisions and general legislative acts. The initial politi-
cal function of this momentum was neatly epitomized in a partially ironic
statement made by the wartime minister of police, Ivan Vekić. Rationaliz-
ing the vacating of prisons, Vekić famously stated that he “could not
wage the war with nuns.” More than four hundred convicts were re-
leased in 1990, including over three hundred who left prison by the pow-
er of a single decision on the collective pardon after the constitution of a
new government. In the first half of the 1990s, the numbers of commuted
sentences surpassed 50 and 60 percent of the filed applications. The Law
on Amnesty, enacted in 1990, commuted all sentences by 25 percent,
including the sentences of those who had not begun to serve their prison
terms, while the 1992 Law on Pardon suspended proceedings for over
three thousand persons, including those accused of murder and at-
284 Chapter 4

tempted murder (Kurtović 2003, 481). The Law on Pardon of 1993 gave
wide prerogatives to the presidential executive and in 1996 the postwar
Law on General Pardon was enacted. Large numbers of the convicted,
often for violent crimes, were released from prisons or their sentences
were partially commuted in the second half of the 1990s, not only follow-
ing the applications of the convicts but in the form of ex officio proce-
dures initiated by the government. The later changes of this policy, how-
ever, offered a clear indication of the change of power.
The politics of mercy was more closely regulated by a new law in
2003. It abolished collective commutations and prescribed a more
thorough bureaucratic procedure for commuting sentences. Essentially,
what was once a political act of the sovereign became a protocolary sanc-
tion at the end of the procedure. During the two mandates of the second
president, Stjepan Mesić (2000–2010), the number of pardons and com-
mutations drastically fell, altogether amounting to fewer than five hun-
dred in ten years. They were still ambiguous, including pardons for vio-
lent crimes and acts of political violence in the 1990s, not the least because
Mesić was an important political actor in the 1990s himself. However,
during the mandate of the third president, Ivo Josipović (2010–2015), the
presidential politics of mercy was significantly restricted, especially in
the beginning of the mandate: fewer than fifty persons were granted
executive clemency in first two years of his term, and these decisions
were largely justifiable within penological discourse, while the overall
number of about two hundred was almost four times less than in the two
terms of his predecessor. Although the politics of mercy in his mandate
as well as in the beginning of the mandate of his successor, Kolinda
Grabar Kitarović (2015– ), offered some controversies, they were seen as
such because of the stricter regulation and the media scrutiny of this field
of penal policy. The amnesty for political violence disappeared, while,
generally, it might be said that the politics of mercy of sovereign power
was gradually disciplined and normalized.
The 1990s also abounded with acts of political violence that could not
simply be attributed to the bottom-up logic of ethnic conflict or to the
marginal excesses of transitional semiauthoritarianism. This is the second
momentum of the sovereign power’s penal work. The war with the Serbs,
the then political enemies of the Croatian state, brought many directly or
diffusedly legitimated acts of political violence. Political beatings, extra-
judicial killings, and the placement of mines in houses often targeting
minorities in the mixed population area under Croatian control were
ignored or twisted by the media and generally ignored by the police and
the judiciary. According to police statistics, from 1990 to 2001 more than
2,100 persons were killed, while almost 550 cases were not solved. Half of
it pertains to the period of fiercest conflicts in the 1991 and 1992, which is
still statistically unclear, while the much longer period, from 1993 to 1999,
encompassed bit less than 1,000 murders of which more than 100 re-
 Punishment and Power 285

mained unsolved. These numbers altogether suggest a wider picture of

political framework that structurally enabled and legitimated violence.
How did sovereign power distribute its political violence?
First, violent operations of power centralization hit those on the Croa-
tian side who were opting for a more peaceful settlement with Serbs,
such as Josip Reihl-Kir, a police chief in Osijek. In summer of 1991, Reihl-
Kir was killed in a politically organized murder in Tenja near Osijek.
Second, the political and military leaders of the extreme right, politically
organized by the Croatian Party of Right (HSP) that had parallel armed
forces (Croatian Armed Forces, HOS), were assassinated: Ante Paradžik,
the leader of HOS, in 1991 near Zagreb, and Blaž Kraljević, who was
opting for cooperation with the Bosnian Muslims (as the one in the Sec-
ond World War propagated by the Ustaša regime) and against the divi-
sion of Bosnia pushed by the sovereign, in 1992. HOS forces were dis-
banded or integrated into regular army structures. 23 Third, the preven-
tion of political regionalism was as firm and violent as the showdown
with ideological and organizational aberrations; in a historically recog-
nizable pattern, the quarters of the Dalmatian Action, a regionalist party,
were bombed in 1993 and the members themselves were accused and
processed since the party became a threat to the centralized order of
power.
If the targets of an informal penal policy were simply the enemies of
the sovereign, as in the Foucauldian history of punishment, the proce-
dures of punishment were sometimes not less anachronistic, and equally
undiscriminating. Lora, Kerestinec, Kuline, as well as other notorious
metonyms such as a “garage” in Osijek, Sisak’s rehabilitation spa Jodno,
or Pakračka Poljana in Western Slavonia—these are the names of military
bases, improvised settlements, paramilitary headquarters, or simply
places of torture where military prisoners of war and civilians, largely
but not exclusively Serbs, were tortured by unclearly differentiated mili-
tary, paramilitary, and police structures while horror stories of sadism,
electricity, knives, and sexual humiliations, not especially restricted by
Rejali’s uniformity of style defining national unofficial torture policies,
emerged into official public space later, when the regime was losing pow-
er. 24 The place of the torture was not the agora, but its political visibility
and targets were politically clear. Furthermore, these acts of violence—
beatings, murders, bombs, torture—had something in common: they
were largely ignored, diminished, or twisted in media discourse. They
were either ignored by the judiciary, and partially processed or treated
only formally, generally in order to acquit the accused. And they were
paired with more or less focused political legitimization that could take
more diffuse form, if necessary. 25 However, the pattern of focused politi-
cal command is clear: all the warlords of the 1990s whose troops con-
ducted torture and killings, such as Tomislav Merčep, Branimir Glavaš,
and Đuro Brodarac, were also prominent ruling-party members and po-
286 Chapter 4

litical functionaries of the regime. Only with the change of power and the
EU accession process gaining momentum did these events receive new
political meaning in the mainstream media interpretations and the perpe-
trators were processed. War heroes and the sovereign’s warriors of yes-
teryear became the war criminals of today. What was once an informal
penal policy, with its politically authorized headsmen and politically de-
signed convicts, escaping the formal framework of penal policy, in the
new period, at least for a while, became substituted by discipline and was
caught into a machine of a reconstituted formal penal policy.
The next momentum pertains to the intermingling of the police and
the army with criminal elements and the strong politicization of these
structures during wartime. Wartime police forces were ethnically and
ideologically purged and infused with an unprofessional but ardent ca-
dre while the ideological profile of the military officers and parallel lines
of command created a structure that enabled “covering up and often
encouraging plunder and crime” during the war (Špegelj 2001, 199). Ac-
cording to Martin Špegelj, the controversial minister of defense quit his
job and then resumed work as chief inspector of the armed forces during
the most intensive armed conflicts in 1991 and 1992; ideological govern-
ance of the army had its strong parallels in the capillary processes of
violence. Criminals and people “from the social bottom” were employed
in the army; this process created a picturesque wartime paramilitary phe-
nomenology of violence, ranging from simple drunken banditry to a
criminal political economy of dealing drugs and stolen vehicles (Špegelj
2001, 243, 306–7). Spillovers of violence and lack of professionalism were
not important. The important thing was the sovereign’s trust while pro-
fessionalization of the army became a political task for the age of disci-
pline yet to come.
The last momentum can be traced in the destruction of the judiciary
by presidential decrees, informal political pressures, the ousting of
judges, and political instrumentalization of the State Judicial Council
(DSV), the institution in charge for the appointment of judges. The im-
pact of sovereign power on judiciary may be summarized as “a series of
political appointments of incompetent, morally suspect and/or inexperi-
enced judges” (Uzelac 2001, 40). As a result of political pressures, more
than 250 judges and more than 100 prosecutors quit their positions and
became lawyers in the period from 1990 to 1995 (HHO 1995, 90) with
predictable outcomes for judicial efficiency and fairness. To summarize,
the wartime birth of a state proclaiming political emancipation of the
nation and freedom for individuals had a dark verso of freedom for
criminals who were used in the war and exculpated by the new elite. The
centralization of power and legitimate wartime defense went hand in
hand with political violence aimed at political opponents and minorities.
Legitimate defense efforts of wartime police and army had a side effect in
“professionalization,” the organization and arming of criminals who
 Punishment and Power 287

would later continue their operations in the emerging crime syndicates.

Ideological proclamations of law and justice in a new and optimistic
liberal democracy were paired with the ideological and personal destruc-
tion of the judiciary. Discipline was shattered while the sovereign’s pow-
er channeled its operations into an informal penal policy. Silent leges inter
arma, Cicero’s normative formulation on the wartime working of a legal
framework, thus gained a specific meaning in a study of penal policy in
wartime state-making process. Furthermore, the terrain was set for the
postwar production of violence subsumed under the oblivious label of
violent crime.
Although I would very much like to continue the narration about the
violent consequences of wartime sovereignty, of various acts of violence
and crime committed by destroyed men; the sovereign’s warriors who
returned from the front and were like Kotcheff’s John Rambo unable to
accommodate to peacetime disciplinary life; the boosting of violent orga-
nized crime in part connected with the official structures or made by
people with background in those structures during the war in Croatia
and neighboring Bosnia and Herzegovina; a specific structural place of
hate crime in a gamut ranging from government sponsored or govern-
ment tolerated violence to simple governmental indifference when the
targets of violence are at the margins of society (Bieber 2003, 42, 45);
attacks on journalists who did not fare too well in the lap of sovereignty
(Zbor 2011), although the freedom of press was not that bad; and the
impact of the lack of discipline on other strands of crime such as youth
crime, across the elements of disciplinary reconstitution, filling up of
prisons, and their emptying through probation, endless reforms, and
changes in framework guiding penal policy, I have to stop here with an
empirical unfolding of a genealogy, in order not to inflate a single illus-
trative case to Brobignadian proportions in an already pet political scien-
tist’s chapter, and return to the safe waters of some generalities before the
general summing up of the chapter. 26
If political power can induce quite a radical change in penal policy,
the question of the causes of this power remains to be answered, as well
as a question on the general relationship between power, violence, and
punishment. Why did sovereign power materialize and then dissolve? In
terms of historical institutionalism that analyzes state formation (Tilly
1985, 181–84), the context that enabled the building up of sovereign pow-
er can be described in a relatively simple manner: when a state is made,
war making takes care of the rivals outside while rivals on the inside are
eliminated through violent processes. This is the job for sovereign power.
The combination of these momentums produces both order and author-
ized political violence, which was observed in the Croatian case. In terms
of penal policy, this order was suitable for description in Foucauldian
terms. Yet, ironically, its success was its demise: when order was “ce-
mented” and the main political institutions successfully “erected,” with
288 Chapter 4

“implicit or explicit threats of bloodshed” (see Kalyvas, Shapiro, and Ma-

soud 2008)—when the state was consolidated on an internationally rec-
ognized territory—the order was ready for a new change. Penal policy
could then be reestablished in its peacetime functions of maintaining
order. Sovereign power returned to its less ambitious proportions, sleep-
ing until the next crisis like Tolkien’s Smaug, the real monstrous king
under the mountain Erebor. The happy consumerist population accumu-
lating economic debt had to be managed on the periphery of European
capitalism, through the re-emergence of and updated disciplinary tech-
nologies and penal developments in relation to the economic changes
and the process of EU accession. The country was introduced to the chal-
lenges faced by its older members, and the impacts of those challenges on
violence, punishment, and crime. The problems of aging, unemployment,
and debt, as well as the new culture wars and their reflection in struggles
for the new penal definitions and the punitive practices, were paired by
the reshuffling of the international relations and hegemonies, and the
political uneasiness of the waiting for the “new barbarians.” But that is a
story for another time.

A MINEG BRECHT A DIN: POWER AND PUNISHMENT

BEYOND THE LAW

After outlining what power is, or to put it less ontologically, what is

usually meant by the term, I have tried, mostly through a reading of
Foucault, to tackle the relationship between power and punishment with
special nods to torture and a case of state building associated with war
that reverses some modern trends in punishment. Power has changed
and works in a new context of economy, society, culture, and communi-
cation, but probably not enough for punishment to change radically. The
things have become more complex but one view of it, which may still be
of analytic assistance, is that it is a combination of old and new orders of
power and combinations of punishments (see table 4.1, with Deleuzean
1990s “postscript” added).
From the point of view offered here, albeit with all the economic and
ideological differences, industrial societies have not yet escaped the his-
torical functioning of power. Metaphorically speaking, some revolutions
may have changed the color of the guard’s uniform in the panopticon,
but surveillance stood the same (see Gordon 2014, 500). To that extent,
this works for the other sketched modes of power—for biopolitics and
perhaps to a lesser extent for sovereignty—while the most tangible differ-
ences may be found in pastoral power and governmentality, which seem
to hollow out the ontology of the state. The first case illustrated this
theoretical framework: torture as a tool of sovereign power displays stub-
bornness. If another row should be added to append the table summariz-
 Punishment and Power 289

Type of Power Modality of Ontology Discourse of Discourse of

Punishment Legitimization Explanation
Sovereign Body, torture Body as pain Divine right or Community in
power: the people’s history and
paradox of justice; international
centrality and retribution relations:
feudalism (of wars, conflicts,
small violent insecurities,
sovereigns) ethnic, class
and political
domination
Disciplinary Prison, Body as Cynical; Functioning
power: space, surveillance habitus invisible; industrial
time, and the correction economy
body
Biopower: in the Genocide Population as Eugenics State racism
milieu of the a living
population collective
Pastoral power: Soulsearching, Multitude of Improvement Religion
governing the publicatio sui governed of the higher
souls individuals self
Government- Responsibil- Reflexive Efficient Political
ality: conduct of ization subject governing of economy of
conducts the self and liberalism
(conduite des others; security
conduites)
Postscript of Functional Information Neoliberalism Post-Fordist
control exclusion capitalism

ing a Foucauldian story on streams of power, it would add some of the

following characteristics in the boxes summarizing its ontological traits,
functions, and discursive qualities.
Torture is punishment. It is a means of inciting fear directed at those
who are not currently tortured but could be; sometimes, marginally, it is
used to extract information. The speculation offered within our probing
of the extremes could be: if a device were designed to extract informa-
tion—a snout like that of the special bugs in Verhoeven’s movie that suck
out the brains of the unfortunate space marines, perhaps, but one that
would be harmless, cheap, and as easy to use as downloading data from
a hard disk—there would still be torture. Torture is the infliction of pain
by the situationally powerful on those who are weak, to send the mes-
sage and to induce fear, working beyond the retribution of the singular
enemy of the regime. A body of the tortured is still caught in the old
battle with the torturers, a trial fought in the silence of punishment that
still produces political noise. Torture may kill discourse by pain but it is
290 Chapter 4

explained by it, offering resigned narratives of its political being or more

sophisticated normative counterarguments, but on the level of the phe-
nomenon itself, it sends a political message to the others sometimes not
planting fear but inciting rage among the wretched of the earth, to bor-
row a title from an anticolonial bestseller legitimizing violence against
exploitation.
The second case also involved this momentum of sovereign power.
The specific difference is that once it was inside the law, while now it is a
known political secret, like the emperor’s new clothes where everyone
can see the king’s naked body. The same thing emerges in new context,
without the official overcoat of the old days. The more general point of
the case, rather than an empirical dissection of the specific modes of
political violence and punishment that emerged on the terrain, is thus
that desperate times call for desperate measures. Or, as an old Yiddish
proverb has it, a mineg brecht a din (Landmann 1965, 198): the need breaks
the law. Agamben knew it, and liberal democracies come to understand it
in wars and through other crises where ambitious formal frameworks
offering rights tend to shrink and are abandoned with lots of noise but
without much serious resistance.
However, I want to finish the chapter with some explanatory points,
conceptual and normative dilemmas beyond the old questions of revolu-
tions and its subjects, feared by the conservatives, and since the French
Revolution with more or less success recycled on the Left, in a perpetual
search for the subject of the new revolution to get history moving to
another stage. Power is indeed a big theme, as is punishment. Rorty, a
pragmatist, was in a way right: power is too big of a concept. The prob-
lem is, in Foucault’s words, that power comes from everywhere, not as a
totalitarian imposition on the whole of society but from below. Indeed, it
is almost all power, in a multitude of relations almost everywhere, and
that makes the concept hardly manageable. The paradox is the following.
On the one hand, almost everything counts as power and is part of power
relations. It is not a Schmittian autonomy of the political, but is omnipres-
ence, its unpoliticized appearance everywhere where living beings enter
into mutual relations. For example, economy refers empirically to the
historical set of relations of productions and exchanges with various
more or less rational actors entering into the game, which can be treated
from the perspective of Marxism as well as from the perspective of neo-
classical economics. It is power, since it involves not only, in a banal
example, a state setting the stage for the peaceful transactions, a prophy-
lactics of formalized power, but also inertia, a set of partial information
and semirational choices in a given circumstance, enmeshed in internal
and external constraints of psychology, threats, fears, time, space, and
culture, within a framework of contracts and rights, various manipula-
tions of supply and demand, with political contestations breaching
contracts, where debt for example can be envisaged, with political conse-
 Punishment and Power 291

quences, as a relation of power (Graeber 2012, 5), in a combative dis-

course of the debtors undermining certain institutions, of course, but at
the same time showing their contingency, the same ontological status of
multiple singular contractual relations and their political reframing and
reversals, the pervasiveness of politics and power where the lucky get
away with it and unlucky get punished. It is a breeding ground of
(a)historical Nietszcheanism. 27
To return to the start, on the other hand, is to humbly remember one’s
disclaimers and the law of the tool. Give a baby a hammer and it will see
nails everywhere that need pounding, said Kaplan, formulating the folk
wisdom into a psychological “law of the hammer” (Kaplan 1964). A polit-
ical scientist can be expected to accept such a story where his pet concept
is important and he will start to see power (and punishment, in this case)
everywhere. It is something that critics of Foucault, who advocated a
specific version of a wide conceptualization of power, called pankratism
or even “a paranoid vision,” an analytically useless and psychologically
suspicious tendency to see power everywhere. Although the labels are
seductive, they hardly serve as arguments; the relations of power and
punishment may not be literally everywhere, but they are nonetheless
quite frequent and we have probed only the extremes leading to punish-
ment. That torture has to do with power is more or less without question:
a sovereign power aggrandizing itself in the war of terror, with its porte-
paroles in academia and the field of law; or in the process of state forma-
tion when the feast of amnesty can be combined with war efforts and the
Rambo-like consequences, although less dramatic and individually hero-
ic, and more somber and brutal, of Mazower’s “destroyed bodies” that
after the war plague society like zombies. The emptying of prisons as in
Franco’s Spain, or their filling with clients when needed: rituals of pun-
ishment here as well appear as effects of power. This can be observed
across the world today as well in history, as the previous chapters con-
veyed. Of course, this empirically observable “pankratism” of punish-
ment is better served, as we have argued, with methodological caution:
power must always be considered in context, as the chapter on compara-
tive politics reminds us. One should think empirically and furthermore
skeptically about what really happens, with a focus on the capillary level,
on the bodies of the condemned, tortured, and imprisoned, and think
about power and punishment in such a down-to-earth way.
With that in mind, this chapter offered some provisory conceptual
tools that still seem handy for the analytics of power and punishment.
They may (and probably will) look funny one day in the annals of the
history of the future, of other powers, other controls, other punish-
ments—that is, if they don’t prove more stubborn, especially if the old
situations reoccur in the way they do today when rights and standards
crumble, giving way to the relations of the power of yesteryear. Chil-
dren’s rights become the threat of the philiarchy, women’s rights to re-
292 Chapter 4

productive freedom become murder of the unborn. Those who were pun-
ishers get punished as the power situation changes. To add the usual
litany calling for further research and scientific ecumenism: all of this is
more of a rudimentary insight, given within the coordinates of an idio-
syncratic discourse that is open to interdisciplinary combinations in ana-
lyzing both variables, their subvariables, and their interrelation, calling
for much more sophisticated theories, both from political science, policy
studies, sociology, criminology, and other disciplines within and outside
of the social sciences, and for more fine-grained vocabularies to explain
punishment. All that said and before moving on to religion as one of the
highly relevant discourses to understand punishment, I finish with some
abstract speculations that may induce the reader to make some further
sense of these extremes expounded in this chapter. After a reflection on
the collective and relational nature of power, the one that follows speaks
of the productivity of power that dialectically appears along with its
other pole of repression, formalized as punishment, putting power at
risk.

EPILOGUE ON SPINOZA AND THE LITTLE PRINCE

The pervasiveness of power is not its absoluteness. Yes, there are tyrants
and torturers, historical and contemporary sovereigns, frenetic egalitar-
ian collectives and merciless hierarchies, national and local, who like to
punish in ways intimated on the pages of this and the two preceding
chapters—with the absolute of death or trying to reach an absolute of
pain, or sometimes combining the two. Yet the answer to Acton’s concern
with which we started is that there is, both in principle and in practice, no
absolute power except perhaps in theological fantasies. In this world—
“the worldhood of the world (as such),” to use the titular phrase from
one Canadian punk rock LP by Nomeansno and their reading of Heideg-
ger—the phenomenon is relational. Even a sovereign, alone on his planet,
needs a little prince or whomever drops by to admire him. When the little
prince stumbled upon the planet where the sovereign resides, strange as
the businessman or the drunkard, all of them the lost grownups enjoying
their own vices on their own planets of solitude, he was naturally a
subject: to sovereign power, all are subjects. Un tel pouvoir emerveille le
petit prince, wrote Exupéry ironically, how this power stupefied the little
prince. The point is there is always a little and a big sovereign. The big
one does not exist without the subjects, small points of relational power
that sometimes rise together in revolutions. Even sovereign power is rela-
tional, even in the case of a religiously self-understood machinery of
force and destruction sketched in the introduction, merging themes from
this chapter and the next one. As any other machine of power and pun-
ishment, it grows on something to be untangled before it can be disman-
 Punishment and Power 293

tled into what one wants—some kind of legitimacy, obeisance, and con-
sent beyond mere force and sadism.
The second question is as strange as it is old: what would an internal
morality of power look like beyond the simple political Darwinism of
“might is right,” often but not always victoriously proving itself in the
historical fields of survival? While Spinoza was no Nietzschean, but (with
all the caveats) perhaps an early liberal of a sort, his ontology and ethical
considerations had to do with power. He offered such a morality of pow-
er, long before Nietzsche, who admired him in his own way. Augmenta-
tion of one’s power is good, as is the augmentation of the powers of the
collective. Bad are the things that diminish these powers, which was the
point made in Spinoza’s Tractatus Theologico-Politicus from 1670. Pub-
lished upon his death, Tractatus Politicus (theology omitted) saw the state
in these terms, as a res naturalis, a thing of passion, not cynically as a
Machiavellian chaos but as a potential place of peace and harmony, as
later in Hegel, a place of collective powers of those living together, that
can in various forms curtail freedoms, lapsing into tyranny, a process that
Spinoza’s normative discussion tries to regulate, giving ideas on how not
to end up in such a state (ne in Tyrannidem labatur is the part of the
lengthy subtitle). It is “power to” against “power over,” as in Arendt, a
power that if it works well, works for the many, ideally against punish-
ment that constrains and curtails. When the functional sovereign be-
comes an obstacle, drifting from rational punishments into whims of op-
pressive tyranny, this power may well punish back the sovereign, as the
king was a bit harshly attacked in a Public Enemy song with the theoreti-
cally inviting title Fight the Power, escaping Arendt’s more peaceful cate-
gories with its guerilla tactics, but perhaps describing this Spinozistic
political moment.
Deleuze takes up this position to which I return in the concluding
chapter, also bringing some interesting hints about Spinoza, Nietzsche,
and Arendt. In his testamental video reflection Abecedaire, when discuss-
ing joy, Deleuze discusses puissance and pouvoir expressing this distinc-
tion. The first one refers to everything that fulfills one’s potential, realizes
one’s abilities, brings joy, he claims against the ancient tradition of aske-
sis. Puissance rempli, the feeling of fullness of force, is an ideal; it is joy,
while sadness is the obstruction of this. There is no bad force or potential:
Il n’y a pas de puissance mauvais, Deleuze says explicitly, evoking the
strange example of the natural power of a typhoon as metaphor (the
destruction of the lives and property seems to be ephemeral for such a
natural power). The wickedness is in the foreclosure of possibilities, in
obstruction, and this he finds in power, pouvoir. It separates those submit-
ted to it, it is an obstacle to the potential of puissance. In French, after all,
the Lord Almighty is le maître tout-puissant as, for example, in the didactic
comedy Bruce Almighty which translates as Bruce tout-puissant (not, e.g.,
Bruce ayant tous les pouvoirs). God is the ultimate potency of everything.
294 Chapter 4

The only problem of joyous potency is that the subject cannot handle it.
That is why, explains Deleuze, van Gogh cracked. The same ambivalence
is present here as in Spinoza: censorship, restrictions, and punishment
are seen as wicked things of restraining power, as are the instances of the
society of control, a slippery serpent, a metaphor of power as an evil
instance, controlling and excluding. This is the position of creation: pow-
er redefined as creative might make new things. It denotes the set of
forces and new technologies that change the subjects and, mystical uto-
pianism aside, punishments change accordingly, in line with the overly
general hermeneutic maxim of the chapter and Foucault’s final under-
standings of power, which gives space for the specific scenarios of dis-
tributive and collective power as well as for the wider picture of relation-
al power producing a subject’s identity as a part of that relation (see
Foucault 1982; Kusch 1991, 122–23). It has to change; it always did: the
subject, the power, the punishment. Say it to the Humeans, one might
recall. It is their old point of skeptical empiricism against the theoretical
speculation. The sovereign and little prince constitute each other. There is
no absolute power but, following Spinoza and Deleuze, one might ima-
gine how one nice day a perfect power would eliminate all punishment.
Let joy reign supreme? 28 Perhaps not. We should return to our planet as
the Little Prince did using the serpent’s venom. The other perspective is
more classical and pessimistic, one of singular individualistic heroism
against the mystical utterances of a Deleuzian Spinosizm: repression and
the destructive force of political typhoons may breed moral beauty. This
is a grim aesthetics of punishment, of martyrs in the hands of power,
amplifying both the barbaric and the heroic, Goetz and Schindler, in the
politics of power of the final solution. This was formulated by a writer
already introduced. Danilo Kiš, who dealt with the theme of Stalinism in
the Tomb for Boris Davidovich, claimed he only wrote poetry on a political
subject. He stated that totalitarianism “pulls negative human traits on the
surface” but that it “also encourages most heroic human efforts”: “In any
case, we would oversimplify things if we would claim that an oppressed
man is in essence bad, while the free man is in essence good. The things
aren’t that way,” he concluded (Kiš 2015). Extremes of power and pun-
ishment bring out the character and the beauty of resistance. This is a big
wager, strange to the Enlightenment spirit and hard to accept whole-
heartedly. I can only leave it to the reader to ponder on the chapter, and
on the treatise as a whole with these thoughts in mind, while probing
must continue to the next stop. Religion is another discourse to make
sense of power and punishment, distributing the roles of the subjects. It
claims legitimacy based on the discovery of eternal truths passed down
from God. Not surprisingly, this was and still is a significant source of
punishment.
 Punishment and Power 295

NOTES

1. That did not stop him from offering normative judgments, including ones con-
cerning punishment—for example, that General Lee should have been hanged.
2. Rare are the exceptions that follow Foucault’s Discipline and Punish in tracing
historical relations between power and punishment. Daniel Botsman’s excellent study
of punishment and power in Japan is one of them. Be it the changing fates of the
feudal warriors, whose historical fall was romanticized in the Last Samurai, or the
“special villagers” (tokushu burakumin), whose ostracized status was evoked by the
sentimental Departures, Botsman vividly associates the struggles of power of various
strata with various practices of punishment (see Botsman 2005, 55, 86–114).
3. Much of Hannah Arendt’s ideas on power is already present in a few sentences
of a short tract written by young Montaigne’s friend La Boétie who, in the sixteenth
century, explored the concept of “voluntary servitude” (de la Boétie 2009): the power
of the tyrant is not in his force but in the collective weakness, the “willing[ness] to
succumb.” Romans enter Sulla’s room solving their conflicts, and decisions are made
over life and death, right there in a “tyrant’s den”; Cato’s memory and wonder is an
allegory of the (non-)power of the tyrant in the state.
4. Some of the material of this section was first presented in Croatian at the sympo-
sium “Power of Ideas” held in Osijek, Croatia, in June 2014 and some of it was used for
the presentation of the conference “Time Served: Discipline and Punish 40 years On”
in Nottingham, United Kingdom, in September 2015.
5. Note that punishment appears here as a form of power, as a hierarchically lower
concept, since both involve technologies as opportunities and constraints. Punishment
as power, and vice versa? The discourse of this chapter tries to keep the subtle distinc-
tion between the two in order not to collapse into tautology. See Foucault (2013, 8, 14;
1975, 106) for general ideas on using the concept of punishment to analyze power
relations, and Foucault (1975, 31, 44, 58, 65, 210, 251) for examples of concrete analyses
where the two concepts are kept more or less distinct or, in specific types, seem to
merge, like in the formula “To punish is to exercise.”
6. See also Foucault (1975, 66, 92–93, 103) for the economic context of his analyses,
as well as Kumar (2000) and Jessop (2004) for parallels between Foucault’s and Marxist
approaches to power.
7. The procedure, although with some practical difficulties concerning the quarter-
ing, was fulfilled on March 28. The royal bourreau Sanson continued his job produc-
tively under the new regime, from 1792 onward happily replacing his old tools of
trade with the guillotine.
8. The French word Foucault usually uses to denote these technological ensembles
of forces, discourses, and subjects is le dipositif, which is more abstract than “the appa-
ratus,” the usual English translation that I kept here, but one should note that the
mechanistic metaphor of the apparatus (l’appareil) appears in Foucault as well, asso-
ciated with the state, and thus not specifically referring to the mechanisms of discipli-
nary power (see Foucault 2001c, 1626).
9. Mann called this “epistemic disciplined power” (Mann 2006, 388).
10. The aspects and problems of this craft are described by ancient Platonic meta-
phors of the shepherd in contrast to a specific political weaver who has to be versatile
in bringing and keeping the subjects together, forging concord and friendship in a
community (see Foucault 2000b, 304–7; 2004).
11. In that concrete case, Becker, being a good homo economicus, allegedly calculated
that crime does pay.
12. At least within this perspective, a concept of negative punishment (that I have
heard people use) may not be simply a pleonasm, since one may, at least metaphori-
cally, as with negative and positive rewards, think in terms of negative and positive
punishments.
13. Batalhão de Operações Policiais Especiais (Battalion for Special Police Opera-
tions).
296 Chapter 4

14. The vignette is neither an imperialist manifesto (“one should invade”) nor a
piece of historical accuracy (“Shia suicide bombers”), but a piece of irony, as are
Verhoeven’s films, the initial Robocop, and especially his brilliant take on Heinlein’s
Starship Troopers.
15. Thus the following critique of Rejali hits the mark: “A more nuanced distinction
between ‘democratic’ and ‘authoritarian’ regimes would have offered more weight to
his argument” (Freije 2010, 157). There are references to “the French social theorist
Michel Foucault” in Rejali, who accepts his arguments on disciplines allowing “mod-
ern states to exercise power without employing overt sanguinary violence” (Rejali
2009, 345). Rejali, however, omits many points about the regimes of power (and pun-
ishment) explained in this chapter: coexistence, possible trade-offs explained by the
next case, hybridization, openness, and so on. A reference to Foucault functions more
as a superficial nod of the head than as a serious engagement, which would be just fine
if another detailed framework for the study of power was employed.
16. The Battle of Algiers subtly argues, against Rejali’s claims, for the tactical effec-
tiveness of torture. In the beginning, footage shows a man broken by torture with a
miserable and empty gaze. His confession leads the French forces to Ali La Pointe, a
FLN leader, who is then blasted together with the house where he was hiding. The
French commanding officer, Colonel Mathieu, a fictional combination of Massu, Big-
eard, and Trinquier, is the one who authorizes torture on the local level as a tactical
means that follows logically from his sovereign’s command to keep Algiers in French
hands, although he is constrained by the lack of clear political will. (Listening to Paris
isn’t always easy; after an ironical smile, he laments how all the Sartres appear on the
French side.) The film later depicts torture with water, blow torches, and crapaudine-
style convolutions of the body around bending planks, not as a simple colonial sove-
reign work retaliating on enemy bodies but as an interrogative torture necessary to
extract useful information in the first twenty-four hours of detention since, because of
the structure of the insurrectional group, it later becomes mostly useless.
17. See Rejali’s position, which is ambivalent in using realism in two different ways,
the normative mode of intelligent realism listening to analysis and acknowledging
torture is “downright foolish in some cases,” exhibiting a “corrosive effect on state
power,” and the “real realism” of strong interests pitted against analysis and favorable
to practicing torture (Rejali 2009, 26). One does not have to read Hobbes to know
which one of the realisms usually prevails.
18. Since even the simplest penal concept is embedded in cultural context (Melossi
2001, 404–5; see also Zedner 1995, 518–19), it goes without saying this is so for institu-
tions of penal policy and whole penal systems. My argument about Croatia should
thus be put in the context not only of culture—a complex and problematic concept that
I discuss much, probing comparative penal politics and penal religions—but also con-
sidering the simple fact of a turbulent transition, huge economic, political, and even
demographic changes to which one might directly or indirectly attribute changes in
crime and penal policy. (I am happy if I explain only part of the complex story in a
reasonably plausible way.)
19. While the general population shrank from 1990 to 2010, falling from about 4.5
million to less than 4.3 million according to the official censuses, the prison population
in the same period rose from an average of 2,000 in the 1990s to well over 5,000
prisoners at its height around 2010, reaching a rate of 120 prisoners per 100,000 inhabi-
tants. While the general population continued falling due to aging and economic
emigration, the prison population shrank even more after the reform of penal law and
introduction of probation in Croatia, falling to below 3,500 prisoners in 2015, and the
prison population rate of about 80.
20. This picture is both simplified and vague. For a nuanced discussion on the
concept of political technology in the study of punishment, one that takes “disciplines
as just one political technology that has shaped the evolution of punishment,” see
Simon (2013, 63).
 Punishment and Power 297

21. Space does not allow for the discussion of the case of communist Yugoslavia
(1945–1991) beyond a brief note. It was a partly successful modernizing force that
provided employment and social security for the working masses, and enabled their
economic emigration when necessary. This reduced crime rates and kept moderate
prison population even during the frequent economic crises. However, it resorted to
police repression and political punishment ranging from mass killings in the form of
people’s justice after the Second World War, political uses of prison and the camp to
suppress ideological and nationalist dissidents in the country, and, through its secret
services channels, extrajudicial killings of the regime’s enemies abroad and torture to
the enemies within. Its penal history still has to be written as well as its continuities
and discontinuities with regard to the successor states. For changes in the formal penal
framework, some statistics and judicial choices of punishment in Croatia as a part of
Yugoslavia, up to the pre-Homeland War period, see Horvatić (1980).
22. If one is not eager to read the novel Il Gattopardo (The Leopard), the paradoxical
idea that everything has to change in order to stay the same is also rendered in
Visconti’s classical adaptation with Burt Lancaster as conservative Don Fabrizio and
Alain Delon as the opportunistic Tancredi, whose gold-digging class alliances the
theorem cynically describes.
23. Tuđman’s showdown with HOS somewhat resembled Ben Gurion’s strike on
Irgun, namely, the mentioned sinking of Altalena in 1948, showing firm resolution in
maintaining the single center of power. See Sprinzak (1999, 83) and the narrative in the
third chapter.
24. The political function and mandate for these actions, which were conducted by
state agents, judicially unprocessed, and thus constituted as politically legitimated
punishment, are more important in the context of this narrative than the controversial
aggregate numbers of executed subjects, which vary according to various sources but
are certainly not marginal or insignificant (presumably a few hundred killed and
tortured in the historical context of war with about 15,000 war casualties on the Croa-
tian side, including more than 6,000 civilian deaths and the fact of prisoner camps on
the Serbian side).
25. A similar pattern of diffuse authorization can be observed in the political mur-
ders produced by authoritarian structures (e.g., for the case of Mexico, see Schatz
2006). There is no document, and maybe even not verbal order or hint, but the thing
that happens is welcomed by lame official sanction if any, inaction, or even tolerance
and social affirmation of the political executioner. The sovereign’s silence may speak
volumes, not to speak of leniency of his formal institutions.
26. The acute reader will have already guessed that the narrative about the case was
largely salvaged from the “reject & resubmit” article I did not have heart to rewrite as
an inductive shuck’n’jive—to quote some politically incorrect but here precise
words—in order to try to indulge the disinterested editor.
27. Mann’s sociological sensibility produced some nice passages for conceiving
economy in terms of power: “Economic power is the most deeply entrenched in every-
day life. Its routines involve half our waking lives and energies; it yields subsistence
without which we would not survive. It combines diffuse markets with authoritative
production units. Its rhythms are characteristically slow” (Mann 2006, 386).
28. The English title of Tavernier’s 1975 Que la fête commence with Philippe Noiret in
the role of regent Philippe d’Orléans, a film saturated with the sociology and symbols
of the decaying monarchy, along with some libertine orgies and the dilemmas of
punishment of the time.
 FIVE
Punishment and the Sacred
How Do Great Religions Punish?

“[T]he path from one or another Bible verse to state policy today is very
complicated.” Thus claims Francis Xavier Clooney, a Jesuit and a Har-
vard-based professor of divinity and comparative theology, in an inter-
view about Christianity and capital punishment. He continues by com-
menting the use of scripture in legitimating punishment. There is a “risk
of ‘proof texting’—finding a verse in the Bible that justifies what you feel
you should do today. Centuries of modern Biblical scholarship have
shown us that these texts don’t float free of their contexts.” Clooney opts
for contextual instead of fundamentalist reading. The latter often has a
specific understanding of sola scriptura, arbitrarily taking a portion of the
text that suits one’s purposes, proclaiming of it a binding truth: “You
have to read them according to the intentions of the author, the options of
the time, and so on; rarely can they be applied without modification to
the world in which we live” (Clooney 2014). In reading religion as pun-
ishment, context seems to erase radicalism.
This sounds like a reasonable option, although there are no ultimate
rational criteria to decide one way or another. It comes down to a norma-
tive stance in the game of legitimization: one can employ bits and pieces
of a discourse that is not coherent to justify something one thinks is right,
or one can choose one of the alternative hermeneutical criteria, such as
the reconstruction of intended meaning, reconstruction of the historical
context for a more balanced and reasonable approach, and so on. Histori-
cally, however, the opening statement also works as a description of the
application of scriptural text as legitimizing authority. Without much
hesitation, it can be said that the statement is exact enough: the history of
Christianity is not the application of the gospel, nor are the histories of all
299
300 Chapter 5

the other churches, denominations, sects, and heresies. This gap between
the text and the practice, as this chapter intimates, works for other relig-
ions as well, especially concerning punishment.
The purpose of this chapter is not to offer an especially comprehen-
sive and detailed examination but to provide a decent and rounded
enough lay reading of three religious discourses on the level of the text
and their relation to the matters of penal policy, including the issue of
capital punishment, which opened the sequence of the chapters dealing
with specific issues. I first more elaborately describe the reasons for open-
ing this theme, the choice of the analyzed material, and an explanation of
the approach. Three subsequent sections offer readings of religious dis-
courses on punishment as texts—deliberately not in a historical succes-
sion of their appearance, since this is not a historical interpretation but a
probing of the extremes. I leave Christianity for the end, since its sacred
text is neither a pluriverse of sources without a clear center, as in Bud-
dhism, nor a putative singular revelation that appeared in a relatively
short time span governed by a more or less unified authoritative voice,
but a partly schizophrenic document when taken as a whole, one that
jumps from punishment to forgiveness—in the vaguest sense of the two
distinctive traditions of the Old Testament and the New Testament. Al-
though interpretations may bring them closer together, taken at their face
value, they offer opposed messages about punishment. In the end I offer
some tentative concluding remarks on the complexities of application,
pinpointed by the quoted Harvard theologian. Skeptical thinking about
the extremes, unlike their fundamentalist advocacy, comes with taking
into account the sophistries of their application.

WHY AND HOW RELIGION AND PUNISHMENT?

A mystical experience is to be at peace with the world and experience it

as a full and harmonious whole, where the problem of theodicy with
which we toy in the final chapter disappears alongside its nonrational
solution. That is one side of religion, the one where there is no violence
and punishment. However, at the same time as religion soothes collec-
tives and individuals, it also prescribes rules to live, legislates against
transgressions, governs and induces people to violence, as a force on its
own right, although it usually comes with various economic, social, and
political forces. We may have avoided Girard’s anthropology thus far but
even if his saying that violence is “the heart and the secret soul of the
sacred” (Girard 1977, 31), as phenomenon tackled both by sociology and
religion, holds only metaphorically, that is good enough for our pur-
poses. It is thus probably a superfluous thing to say for those the readers
with minimal social and political awareness, but it is for that reason no
less a fact that should be stated: religion was, is, and probably will be
 Punishment and the Sacred 301

used as a legitimizing discourse in various campaigns of out-of-the-

group violence such as conquests, invasions, or defensive attempts and
various punitive actions directed at others in such a context. Crusades
and jihads are but the best-known historical paradigms of this, and as
international law and other discourses have a say in these matters, so
does religion, distinguishing and justifying collective violence in certain
occasions (e.g., Kelsay [2009], to mention enfant terrible among the world
religions that has some hard times secularizing itself). It is a highly inter-
esting area but covered by numerous studies. Even if that type of vio-
lence were in the center of this treatise, I feel there would not be many
original things to say from this author. Therefore, instead of treating
religion as an identity marker and discursive catalyst of intergroup vio-
lence, I take it as textual basis that spoke and still speaks of violence, but
internally, as an in-group phenomenon demanding punishment for indi-
viduals. Religion still matters in that sense.
The optimism of the welfare state introduced various “ends” in the
theoretical discourse of the social sciences. The carefully stated “end of
ideology” (Bell 1960) a few decades later was accompanied by a more
pretentious end of history (Fukuyama 1992), echoing Hegel and his earli-
er disciples but now inspired by the global collapse of communism. The
social, political, and discursive development was accompanied by a long-
time-present thesis of secularization (Bruce 2002) and the ascertainment
of “a secular age” (Taylor 2007). However, the modernist optimism of a
disenchanted world or, on the other hand, melancholy of religious writ-
ers who follow the uncomfortable signs of the times, had its “darker”
sides. The end of history was followed by the pessimistic projections
about the clash of civilizations (Huntington 1996). In other words, the
thinking about secularization and the weakening of the influence of relig-
ion on political and public life have been given a counterbalance, first, in
empirically articulated accounts of political influence on religion (Stark
and Bainbridge 1985; Kepel 1994; Berger 1996, 1999; Esposito and Watson
2000), not least regarding the clash of civilizations, which in the back-
ground usually have a religious heritage (e.g., van der Veer 1994); and
second, in the influential literature on political religion that, on different
levels of reflection and ethical commitment, writes about the sacralization
of politics (Bellah 1967; Voegelin 1999; Bellah and Hammond 1980). Re-
gardless of the political usages of this literature and its ideological dimen-
sion, and possibly a misleading metaphor of darkness that instead of the
possible positive effects of religion primarily refers to the violence and
conflicts that are often linked to religious divisions and motivations of
religious fanatics (see Juergensmeyer 1993; 2000), one thing is clear: relig-
ion and its political influence today cannot be ignored, and the thesis of
secularization has become a “myth of secularization” (Casanova 1994,
11). The influence of religion should therefore be examined with regard
to the policy of punishment.
302 Chapter 5

Policy of punishment is a complex area. This also goes for the tracing
of possible religious influences on it, which raises a question at what level
and in what precise sense to conduct a study on the relationship between
the two areas, religion and punishment. Somewhat in the shadow of the
more popular literature that focuses on religious-inspired historical and
contemporary violence between different monotheistic collectives stands
an intriguing issue to examine the impact of religion on punitive atti-
tudes and penal policy, not in the sense of the “external affairs” of a
collective or community, but rather in the sense of its “internal affairs”:
the religious discourse that deals with crime and punishment at the level
of individuals who are part of a collective. Violence in the latter genre of
religious discourse is not endorsed in relation to “the outside,” but rather
on the “inside” in the sense of legitimization and authorizing of penalties
that may be violent toward the individual who is a member of the com-
munity or subject to the rules that apply in its territory. Is religion (and
how) influential on this level?
Some illustrative examples are easily offered. Not only in the history
of politics of punishment but in the present day, more or less theocratic
regimes like Iran or Saudi Arabia as we have seen directly refer to the
Sharia in shaping their state policy of punishment. The first article of the
“Basic Law” of Saudi Arabia, which was declared by the decree of King
Fahd in 1992, defined Saudi Arabia as an Islamic state, and the Koran and
the Sunnah—canonized Muhammed’s instructions and exemplary
deeds—as its constitution, which, filtered through the religious-legal
scholarship of fiqh, shapes the penal system of the state, at the end of the
line manifesting itself in vividly described public executions by the
sword, Fridays at the Dira square in Riyadh. Religion is in this case a
direct normative reference system of state punishment.
On the other hand, although the political regime is nominally secular,
the reference to God and religion in the United States does not appear
only in hortatory political speeches or in the discursive framing of US
foreign policy as the just struggle of good versus evil, light over dark,
both in Bush and Obama State of the Union speeches, to name recent
examples. Prominent penal attitudes of the Christian fundamentalist
Right that refer to the Old Testament—an expression of stronger religios-
ity of the American population when compared to Western Europe (see
Offe 2005) at least as an external pressure on the mainstream—have an
impact on the politics of punishment in the United States, on the federal
level and especially on justification of the stricter penal policies of the
individual states. Alongside other more narrowly political forces, religion
could be one of the factors that explain the comparative severity of penal
policy in the United States. Connection between the adherence to the
retributive religious heritage of the biblical Old Testament and penal
policy may not be direct, but religiously shaped penal attitudes, as the
cultural background of the political process, could indirectly, through
 Punishment and the Sacred 303

various procedural and institutional political mechanisms, influence offi-

cially secular penal policy, which again makes religion a relevant factor
in shaping punishment. It is, for example, interesting that the American
activists who support the death penalty on the Internet often justify it in
terms of religious discourse, still today presenting their requests for exe-
cution of a convicted killer in a simple, almost Manichean, narrative
about the struggle between good, represented by the victims, and evil,
represented by the killer. These discursive processes, in short, are re-
duced to a “schematic tale . . . with little contextual background” (Lynch
2002, 228), which today remains as valid statement as before.
Even these two brief illustrations suggest that the importance of relig-
ion for punishment is not trivial, while at the same time suggesting the
main direction of its influence (religion as a cause or reason of certain
punishment), thus justifying this research as a meaningful venture. How-
ever, the precise aspect of research into religion with regard to punish-
ment still remains unanswered. One possibility is, for example, to exam-
ine the historical development of individual religious traditions and trace
their empirical influence on the politics of punishment—no small task.
Or, one could explore how different religions affect punishment within
and across national systems of punishment and compare these effects in
the methodological genre of comparative penal religions. Not surprising-
ly, my contribution in this chapter has more modest ambitions that could
perhaps serve as a preparation for such demanding empirical research. I
focus primarily on the sacred texts and the elementary postulates that are
contained in them or are closely associated with them and form the ac-
cepted core of a religious teaching.
The fundamental question is: What kind of penal policy is offered in
the sacred texts, according to what kind of image of woman—that is,
what kind of ontology—when looking not at the actual practice or imple-
mentation but at the text as such? In other words, which elementary ideas
and mechanisms of penal policy can be inferred from these texts? The
chapter is thus about the elementary hermeneutics of punishment, which
still does not examine the actual impact of these texts on the empirically
understood systems of punishment. Claims about the real effects of relig-
ion on penal systems appear only as illustrative examples and references,
peripheral reflections and indications of possible more thorough re-
search. In association with these possible investigations, I formulate sev-
eral fundamental principles of methodological precaution at the end of
this chapter. For appropriate understanding of this study, we should, in
fact, bear in mind that in most cases, as in the previous example of the
United States, sacred texts are by no means the only documents in a
society that would be governed by a single discourse, a phantasmatic or a
real fundamentalist society that would not be differentiated either by
Parsonsian, Habermasian, or Luhmannian criteria that speak of society as
a complex functionally diversified system surviving in an environment,
304 Chapter 5

of the relationship between the life world and systemic rationality, or of

the “society of societies” comprising autopo(i)etic systems. Simple soci-
eties controlled exclusively by a religious code are nonexistent and there
is a question of whether they ever existed beyond the ideal type. This is
certainly not the case of Saudi Arabia, mentioned earlier, and not even
the so-called Islamic State intimated in the introduction.
The different penal regimes of the countries, their harsh or mild pun-
ishments, are certainly not influenced only by religion. We have been
talking a bit about history and power, for example. As much as religious
fundamentalists insist on a return to the premodern foundations of the
organization of life, their traditions are not exempt from history but are
instead with more or less success constructed in modernity, usually from
diverse and not always coherent elements. However, all that said, there is
no dispute that religions today are used not only as a legitimizing basis of
retributive punishment or punishment based on other principles but may
also represent the ultimate purpose of penal policy. Why and how do we
punish a subject? Can he be reformed? What is the point of it? These are
the questions for which religious traditions provide fundamental an-
swers that are still interesting to many. Any examination of the impact of
religion on penal policy must therefore start from the texts themselves
and try to interpret their message before its placement in social, histori-
cal, and political contexts. This chapter is, as the others are, in that sense a
necessary preliminary step for understanding the complex world of vio-
lence and punishment populated by various discourses. The idea is to try
to strip naked some of the religious discourses on punishment.
Theological intricacies and historical interpretation, as far as possible,
retreat to give way to barren text: the voice of the Godhead in the holy
passages. In this examination, I don’t care if Moses is the author of the
Torah or Muhammad of the Koran; for the purposes of this text, I only
care for what is written there. To take it out of context is a task both
impossible and strange, I know; something that appears in context and is
virtually all context, as the chapter of comparative politics of punishment
teaches us, is seeking interpretation against the supposedly bare facts and
numbers. Something often incoherent and contradictory can become sen-
sible only within a framework of interpretation. But it is the way people
take it: they find and cherry-pick a line or story, or take the whole as
(they see) it is. Even Augustine seemed to have taken the Holy Book in a
similar manner, when he started to read, drowning in an overwhelming
feeling of metanoia. 1
The analysis is useful for the study of politics of punishment, on the
one hand for the legal scholarship of penal law, which must take into
account nonlegal influences on the penal policy, and on the other for
political science, which is interested in penal policy as one of public poli-
cies that, as we have seen, fundamentally shape the boundaries of per-
missible and impermissible conduct in the community and, thus, consti-
 Punishment and the Sacred 305

tute political subjects functioning in the realm of the allowed and its
transgressions. An overview of basic religious attitudes and discursive
heritage does not represent an apolitical analysis of the civilizational heri-
tage because they also may have implications in the political arena of
international relations. For example, in the context of policy of European
integration, such an effort can offer perspective on phenomena such as
when considering the political postulates of the Christian foundations of
Europe and the compatibility of these with an accession of country with a
strong Islamic tradition and identity like Turkey into the European Un-
ion, or with large contingents of observing Muslim immigrant popula-
tion. Whether the images of men and women and the politics of punish-
ment in the sacred texts are compatible or not, and whether in this re-
spect, at least theoretically, it is possible for penal policies (finding legi-
timization in different holy texts) to converge are questions of political
context, among other things. All in all, it seems that the policy of punish-
ing according to the holy texts can be especially important for politics in
general. 2
The subject of the analysis is, therefore, legitimate. Another considera-
tion is whether this is a methodologically legitimate research through the
person of the author—as he is neither a theologian nor a legal scholar, but
a political scientist, a discourse and public policy analyst, who deals with
penal policy. To be sure, I do not think that any specific religious position
or affiliation of the author necessarily affects the validity and impartiality
of the analysis, but stating one’s identity can’t do any harm and may
make things clear; he is perhaps more agnostic than believing, but cer-
tainly bears no special prejudice against religion in general or any of the
religions that are analyzed. As a Croatian national born in 1982, it comes
as no surprise that he is a passive Roman Catholic in the sense that he has
received some sacraments (by the grace of God, of course, and some
societal power of rediscovered tradition in the 1990s after the yoke of
communism was overthrown). Whether these will reactivate as some
kind of sleeping terrorist cell, he yet does not know. 3
His idea is to—without religious affiliation or theological expertise, as
a social scientist and a discourse analyst—look at what really is written in
the texts without media distortion, before different layers of tradition
force particular interpretation, political bias, and mutual distortions of-
fered by engaged zealots. Having said that, I have to add a note of cau-
tion: religious writings are a touchy subject for research, not because of
the expected zeal of religious fanatics who give primacy to the profession
of faith before any objective analysis, but because of the age of the texts,
their complexity, and the complexities of the traditions they are part of
(to reiterate, it is difficult even to isolate the “basic text” from a large
sacred book or dispersed tradition of texts), and the number of exegetes
who are often endowed with impressive erudition and have devoted
their lives to the research of a certain segment of a religious teaching. The
306 Chapter 5

point is that it is not inconceivable that a layman, however decently edu-

cated and equipped with the best of intentions, will not occasionally
acquire a fundamentally distorted idea, especially when engaged in
painting with broad strokes. If it comes to that, I can only say that such
interpretive error was not an expression of a malicious prejudice against
some of the religious teachings and that I would be happy to accept any
well-founded counterarguments to show me where and how I have mis-
interpreted things. The only thing left is to indicate the structure of the
analysis based on these grounds.
The chapter, first, on the level of the text rather than a complex prac-
tice, ritual, or institutions, analyze three religions—Buddhism, Islam, and
Christianity—which were chosen due to their influence, geographical
distribution, and universalizing potential (spread by sword, missionary
work, or both), and which are often called the world religions. However,
although the general thrust it to simply read the text, I supplement the
textual presentation with examples of its importance for penal policy and
inevitably engage in bits and pieces of contextual interpretation and finer
distinctions. Buddhism is handled briefly, with a quip on Taoism added
to further profile the idea of “no penal policy as the best policy,” while
Islam and Christianity are treated a bit more extensively since, in terms of
penal policy, at least writing from Europe (specifically from the Balkan
Peninsula), they offer more interesting and more relevant political dis-
courses of punishment. Already this rudimentary tripartite categoriza-
tion suggests extreme generality. It does not insist, for example, on the
differences between Theravada, Mahayana, or Vajrayana Buddhism. It
puts aside the notorious clashes between Sunni and Shia Islam, and some
other less-known sects such as the Ibadis or the Khariji, renegading from
the Shiites and insisting that hukm, the power of judgment, belongs only
to Allah (not even to the Imam Ali, who claimed that to say only God
judges is truth used to tell a lie serving the Khariji). Or the differences
between Orthodoxy, Catholicism, and Protestantism and further, even
though some denominations and their practices might be interesting or
have been historically important for punishment (such as the Quakers of
Pennsylvania). A number of other relevant religions and innumerable
variations, apostasies, heresies, sects, and denominations within the three
umbrella terms are not the subject of special consideration outside of
possible brief remarks that, when necessary, point to some elementary
distinctions within these three.
Following the general approach taken in the book, the specific focus is
on violent crime and violence, and ideas on how to punish those who do
these, but a broader picture also emerges, of a comprehensive range of
attitudes relevant for penal policy and of fundamental attitudes of some
religions on crime in general, transgressions, and punishment that ap-
plies not only to the sanctioning of physical violence among the people.
After the presentation of the three world religions in the next three sec-
 Punishment and the Sacred 307

tions, I offer summary of the findings and their comparison on the level
of the text and then provide some methodological instructions that call
for caution in the study of operationalization of the texts in the field of
penal policy understood as the practice of implementation. Instead of a
conclusion, the final parts present a few brief illustrations regarding sev-
eral other religious and quasi-religious traditions, hoping to confirm the
importance of the presented methodological assumptions.

BUDDHISM (WITH BITS OF TAOISM): PRIVATE ENLIGHTENMENT

AND COLLECTIVE PREVENTION

From Buddhism, a religion that is not based on one central canonized

text, which would facilitate an analysis such as this one, it is probably
most difficult to deduce a penal policy. Nirvana may, after all, appear in
the world of punishment and suffering. Buddhism is, basically, paradoxi-
cal ethical learning indifferent to secular things. According to the Bud-
dha’s teachings, the suffering of living beings stems from their desire
directed to the things of this world. By eliminating desire, a subject
shakes off the shackles of the mundane and enters nirvana, “a nightmare
of daytime” (Reps and Senzaki 1998, 106). For an average Joe, this is
usually associated with meditative efforts, long-term structured tech-
niques called the eightfold path, through which an adherent subject pa-
tiently achieves self-perfection, steadily working on spiritual progress,
but with no guarantee of perfection. On the other hand, as in the Korean
religious animated feature Oseam, it can be achieved by grace, if this
Christian concept is allowed, even by a five-year-old hyperactive boy;
young Gilson, childishly energetic and undisciplined, is happy to distract
meditations. He is especially unbearable for a clumsy overweight monk
who gets his daily karmic bread through his portion of Gilson, a bit like
Tom from Jerry. As the children in Takahata’s Grave of the Fireflies in the
aftermath of the Kobe firebombing, Gilson dies of starvation. This hap-
pens in the mountain paralleled by a beautiful vision. She resembles the
(culturally translated) average depiction of vision of the Virgin Mary by
Bernadette Soubirous and by like seers. Gilson thus reunites with his
mother, disappears and enters the eternity of nirvana at Gwanumlan.
The point is, aside from the specific letting go, the desire or craving,
even for enlightenment by those without spiritual hearing, produces evil
in dealings with others. Even if the Buddha slaughtered a frog by step-
ping on it, sending it to, let’s say, the less-empyreal Heaven of Thirty-
Three, an abode governed by all-too-human Lord Indra, it is generally
evil to kill anyone, including animals (Lopez 2004, 26), or to be violent in
any way toward one’s neighbor. It is also evil to punish another man,
especially by death. Such action perpetuates the cycle of suffering and
distances the perpetrators of violence from enlightenment and, more pro-
308 Chapter 5

fanely, from a better peaceful life. It is not surprising that it is difficult to

construct an active policy to punish or control crime based on Buddhist
teachings. Zimmerman vividly confronts this with the Lutheran stance
on punishment as earthly necessity, based in scripture (Rom. 13:1), of
God honoring the sword that stands between man and ultimate earthly
chaos. On the other hand, being a king who punishes, even with modera-
tion and compassion against ruthless Machiavellianism, seems to be bad
for the karmic slate. The rod of force or punishment, danda, seems to be
necessary for earthly governance and inscribed in its dharma. The ques-
tion is simple: Does a ruler “by this infringement of the principle of non-
violence (ahiṁsā) accrue negative consequences in this and his future
lives?” (Zimmerman 2006, 213). The answer for the radical versions of the
learning is equally simple: “No special standard that would exempt the
punisher from the negative karmic consequences applies. For this strand
of Buddhist thinkers, there is no viable way of combining religious prac-
tice and statecraft, and, ultimately, there would be no incentive for be-
coming involved in ruling” (Zimmerman 2006, 236).
This leads to refusal to govern whatever the cost (Zimmerman 2006,
218) and to the meager influence of Buddhism as a doctrine that could
govern punishment guiding “those with actual political power—those
who are, after all, entrusted with envisioning and formulating the funda-
mentals of social policies and penal systems (Zimmerman 2006, 239). Less
radically, if it is at all possible to talk about any penal intervention on the
basis of Buddhism, it consists of preventive measures, which would elim-
inate the need for a crime. This is illustrated by the numerous legends in
which the enlightened Buddhist sage appears as an advisor to the ruler
who is to decide on policy:
The preferred Buddhist approach has been to discourage socioeconom-
ic conditions that prompt offenses instead of waiting and having to
punish transgressions. For example, when faced with pillagers of vil-
lages and townships, a king thought to suppress the evil by degrada-
tion, banishment, fines, bonds, and death. His Buddhist advisor, how-
ever, told him that there was only one method of putting an end to the
disorder: by providing farmers with food and seed-corn, traders with
capital, and government officials with good wages. The plan succeeds
in the legend and no doubt represents fairly accurately the vague Bud-
dhist ideal of the right theory of crime and punishment. Not surpris-
ingly, in the Buddhist historical chronicles, there is no occasion of its
having been realized. (Hostetter 2002)
However, governmental actions such as these produce what the econ-
omists, skeptical toward the public sector and rent-seekers, call “perverse
incentives.” Rewards and punishment are not exempt from the workings
of karma for various subjects. So, without a doubt, it would be naïve to
equal Buddhism with social policies and preventions of secular socialism
or social democracy. Even if the Lion’s Roar sutra speaks of the respon-
 Punishment and the Sacred 309

sibility of the ruling classes not eliminating the criminogenic structural

conditions (Chui, Cheng, and Wong 2013), the Buddha is no Loïc Wac-
quant. Perhaps it is easier to build things bottom-up by trying to pin an
ontology on which a Buddhist discourse on punishment could operate.
Although, as in other religious teachings, there is no simple picture, I will
try to construct one that prevails and then offer some cautions concerning
this narrative, based on stories that offer variations in ontology.
The ideal of Buddhism is the enlightened man who neither condemns
nor punishes. This way, in principle, is open to anyone, and there are no
irreparable criminals who should be severely punished or excluded from
society. There is no dogma of original sin as a part of human nature. The
worst villain can be changed. This can be illustrated by the story of the
sage whose meditation is interrupted by a violent thug. When the robber,
armed with a saber, asks for money (or life), the sage calmly tells him that
the money is in the drawer. When the robber takes the money and hurries
out, the wise man says to him to close the door because of the thieves
(Tsai 1994, 63). Another variant of the same story doesn’t stop with the
bewilderment of the robber, who later informs his colleagues that noth-
ing has shocked him more in his life. In the trial that ensues, the meditat-
ing wise man (who goes by the name of Shichiri Kojun) is called as a
witness. He states that the accused was not really a thief, since he re-
quested money, it was willingly given to him, and he thanked him for it.
After serving a sentence for other crimes, a former robber returns to the
sage as his student (Reps and Senzaki 1998, 59). The point for penal
policy is that in Buddhism rehabilitation is possible. It is the preferred
approach to punishment. And when punishment is chosen, those giving
a chance for reform are preferred. Archaically, it is then no surprise that
“[b]anishment is therefore a preferred alternative to allow offenders time
to reform spiritually” (Chui et al. 2013). If judged by this ontology, for
Buddhists a punitive exile is better than the death penalty, unlike for the
honorable Greek folks and their polis envy. (Allegedly, or precisely ac-
cording to Aristotle, it was better to be dead than be out of the polis
where beasts and gods abide.)
Indeed, the self-imposed banishment is the motif in The Tunnel, the
other Zen Buddhist story where repression is avoided in preference to the
possibility of repentance and learning. In that story, Zenkai has killed an
officer whose wife he has been seeing. Without much choice, they flee the
city. Soon he realizes how he had made a mistake and leaves the woman,
who turned out to be corrupt and greedy. 4 To redeem himself, Zenkai
begins to dig a tunnel in a remote area. When the son of the murdered
officer came with vengeful intent, Zenkai says to him he can kill him, but
only after they finish the tunnel that is intended to help the local resi-
dents. To kill time before killing his antagonist, the avenger joins Zenkai
in digging the tunnel. When Zenkai, upon the successful completion of
their labor, says that the time has come to kill him, the converted vigi-
310 Chapter 5

lante has already given up his plan. His own transformation is accompa-
nied by the following words: “How can I cut off my own teacher’s head?”
(Reps and Senzaki 1998, 74).
It should be noted that the religious traditions get secularized; in the
dogmatic form, they tend to offer a number of precise lists and precepts
from which one can deduce a penal policy, a crystallization of genre in
which the Buddhist tradition is not exempt. But this is not my interest
here, in this and in the following sections where I omit the Islamic schools
of fiqh and cannon law of the Catholic Church. The ontology of reform
seems to be the main line in accordance with teaching on suffering and
possibility of enlightenment for those who have a spiritual ear or their
time has come together with favorable circumstances to seek such a
thing. But this is not devoid of controversy and different interpretations
emerge when a bigger picture is offered. There are glimpses of religious
utilitarianism and some specific offender types appearing in the wheel of
dharma, as in some kind of Buddhist criminology presenting, for exam-
ple, eight types of killers (Jerryson 2013, 61–62). I don’t, however, dare to
enter into such details, be it criminology or even criminalistics as a foren-
sic practical science. Instead, I offer, for our purposes much more instruc-
tive, two quite famous paradigmatic figures; after a story that could jus-
tify repression, we consider how a lack of compromise produces benefi-
cial results for the collective by the means of the sacrifice of individual.
In one story, the strict head of the monastery kills an undisciplined
monk. The name of the story is Ten Successors. Ekido is a strict Zen teach-
er feared by his disciples. One monk stares at a passing beautiful girl and
forgets to hit the gong at the right time. Ekido hits him with the bamboo
stick from the back, probably in his head, and kills him. A penal offense?
Not at all. In the story, this results in a higher rate of enlightenment than
would otherwise be achieved, by a more lenient regime. It can be read as
a justification of a strict penal policy that by the harsh punishment of an
individual achieves the effect of “general deterrence.” Ekido is not even
confronted with the victim’s relatives demanding their rights, as would
be expected from the vantage point of the dynamics of modern penality
and victimology. He is even praised by the dead monk’s custodian for his
commitment. The consequence of the punishment sacrificing the individ-
ual is the common good measured by the enlightenment output: “After
this took place, he was able to produce under his guidance more than ten
enlightened successors, a very unusual number” (Reps and Senzaki 1998,
84–85). 5
Movie aficionados and Oscar lovers will recognize the story. Let me
once again enter the terrain of the next chapter for the sake of comparison
in which the differences in details help to profile the important point
more precisely. It is, of course, the situation from the recent film Whiplash,
somewhat caricaturely depicting ambition for excellence. A beautiful
summary at the IMDb website manages to put the film in one sentence:
 Punishment and the Sacred 311

“A promising young drummer enrolls at a cut-throat music conservatory

where his dreams of greatness are mentored by an instructor who will
stop at nothing to realize a student’s potential” (IMDb 2014). The film
here is not to be taken as a repetitive exercise in grind-core drumming
until the hands bleed, a piece of musical sociology, a study in technique,
or a piece of mythology associated with young Buddy Rich wannabes,
but as a study of psychology and the application of punishment as a
teleology of advancement. More precisely, an unorthodox music teacher
and jazz orchestra conductor—played by J. K. Simmons, perhaps best
known as for the role of (ano)the(r) fascist, Aryan Brotherhood leader
Vernon Schillinger from prison series Oz—is a real dictator that has his
orchestra trembling. He yells, insults, publicly humiliates, and even slaps
his students.
His ugly methods of putting incredible strain on the particularly tal-
ented students are justified by the idea of producing the next Charlie
Parker. And it seems that he succeeds, exactly because he is a tyrant to
the end of it, pushing his pupils to the extreme to bring out their extreme
talent. Although both are expelled from school, the young fanatical
drummer practices until he bleeds and has a performance of a lifetime
after the teacher ultimately tries to humiliate him by changing songs in
front of a demanding audience. The dark side of the story is that the other
student who had been offered the same treatment got depressed and
committed suicide. In both stories something good, be it worldly artistic
excellence that goes beyond the corn syrup of the mainstream music
industry or enlightenment, is achieved through merciless repression. The
conclusion is that there is no ontology but ontologies and in karmic deal-
ing excellence of some may be achieved at the cost of the suffering of the
others. As Buddha’s “teachings were always appropriate for the particu-
lar suffering individual and for the time at which the teaching was given”
(Numata 2007, v), there is no singular recipe for punishment and if there
is, the outcomes may not be the same.
Beside this illustration, there are two well-known bad guys in Bud-
dhism, if we exclude the more abstract temptations of Mara, the Buddhist
“devil” focused on desire. The one appears within the sangha, striving for
leadership for which he is not suited, and the other is outside of the
observing community, a brutal serial killer whose killing spree is not
paralleled even by recent attempts by various students on American soil.
The first gets excluded but still inflicts the damage of discord and strife;
the second gets included but his karma still haunts him. Is it that their
ontologies are quite different, as are Huxley’s Peter Pans and the Muscle
people? Or is it that the ontology of reform can be salvaged without
exception?
When ambitious Devadatta approaches the Buddha asking to lead the
sangha, the Buddha has no gentle words. Devadatta is no more than spit-
tle, a Buddha’s booger to be launched from the throat, as in the Beavis &
312 Chapter 5

Butt-Head loogie game where these charming couch potatoes spit on

those who happen to pass by. Devadatta does the job of impressing some
earthly powers with his cunning and earthly success; not grasping the
deeper meaning of the teaching, he seeks the Buddha’s retirement, only
to get his saliva-involving answer. He then sends killers, who are then
converted. He himself does not manage to kill the Blessed One by means
of rocks and other vehicles of penal policy, such as a drunken elephant.
Criminogenic as he is, however, he succeeds in splitting the sangha by
intelligently advocating harsher rules of asceticism that were discarded
in the Buddha’s path as excessive. Forrest life, rags, and an austere vegan
diet could still entice some. Devadatta ends up in Hiraya, the Buddhist
hell. He is a model bad outcast.
However, in a seemingly more evangelic and open Mahayana tradi-
tion of the “big wheel,” this ontology is changed. In chapter 12 of the
famous Lotus sutra, the most famous Mahayana sutra, he is also to be
enlightened: an evildoer, attempted killer, and noxious sectarian is mate-
rial for transformation (The Lotus Sutra 2007, 181). This certainly works
for the Angulimala, another Buddhist violent villain carrying a grotesque
name denoting a finger necklace. Although first named Ahimshaka, “the
nonviolent,” Angulimala, a tragic Greek character cursed not by Gods
but manipulated by his vicious teacher, did some serious cutting of the
fingers of innocent victims he encountered. He acquired 999 fingers and
then stumbled upon the Buddha with a predictable outcome. As the Bud-
dha walks, Angulimala runs but cannot catch up with the Buddha to
fulfill his evil task. The Blessed One himself explains the problem suc-
cinctly to the evildoer, in a typical paradox of the Buddhist parable: “An-
gulimala, I have stopped for ever/I abstain from violence towards living
beings/But you have no restraint towards things that live: That is why I
have stopped and you have not” (Lopez 2004, 255). Angulimala is spiritu-
ally transformed and exonerated by the earthly penal authority of the
king of the realm, though not by his people. Seeing transformed Anguli-
mala, a fresh bikkhu, King Psenadi of Kosala accepts that the Buddha’s
power is much greater than those observed in Bernard Shaw’s Pygmalion
transforming Eliza Doolittle, a Cockney flower girl, into a veritable duch-
ess by a professor of phonetics. The vicious killer is tame, giving up on
violence to achieve nirvana, although he is bleeding from the mob blows
since the people have not forgotten his crimes, which is still better than
the thousand years in hell projected by the Buddha, who suggests he
should simply endure (“Bear it, Brahmin!”). As in the more mundane
paradoxes of Zen, enlightenment is achieved by a repenting subject:
“Who checks the evil deeds he did/By doing wholesome deeds instead/
He illuminated the world,/Like the moon freed from a cloud” (Lopez
2004, 259). Retribution by death is eschewed to allow reformation, but
punishment appears as a karmic part of it, perhaps necessary for moral
advancement—not so far from Dostoyevsky in the end.
 Punishment and the Sacred 313

Whatever the variations, short term and long term, I think the follow-
ing can be deduced from this short discursive exercise: in its essential
points, the elementary discourse of Buddhism—I think in that sense, the
presented is beyond dispute and that a very similar conclusion could
have been reached via studying of some dusty sutras and more obscure
bits of Buddhist discourse, as was done here mostly through the profa-
nated Zen stories—is a bit resigned in terms of policing the collective by
the means of penal policy. Buddhist ontology is one of the individual
who can be enlightened and pass into nirvana, as Siddhartha Gautama
did, becoming the Buddha. Buddhist legends and parables offer the indi-
vidual a picturesque path to liberation. They offer no categorical or devel-
oped guidelines about the policy of punishing the multitude of a societal
community. Buddhism is in this sense a private religion. Its penal ontolo-
gy at the level of individual speaks of erring sinners who can change
without punishment, even if they sometimes change with the help of
extreme punishment. There are circumstances leading to evil choices and
destinies that go beyond one’s control, but the ontological core of individ-
ual moral autonomy and the possibility both to do better and to do worse
is caught by the following succinct formula, offered spontaneously in the
course of a Buddhist lecture I serendipitously stumbled upon: “You
create your karma” (Phật Pháp Buddha Dharma 2011).
While at the policy level Buddhism offers vague general suggestions
on prevention instead of retributive violence and some marginal hints on
utility of repression inducing moral vigilance or doing the karmic job of
repenting, something deeper is more important when the teaching, at
least as seen by a lay reader, is stripped to its core of earthly distance
from desire and pain by an enlightened subject who sees sunyata, the
emptiness, behind the wandering of samsara. Violence is something that
belongs to that order. Instead of eschatological projections of emptied
hells and the oceans of joy where there is no violence whatsoever and
“punishments may never need be applied” (Lopez 2004, 415), mundane
acts of inflicting pain culminating with killing, in an endless cycle of
reincarnation, may be seen as a form of absolution within this discursive
belief. I am not to judge the veracity of this discursive system here, no
more than I judge astrology, but it seems it may be espoused in that way.
As we have seen in the episode on Cambodia—the democide that ate up
large portion of the population to be tried by the UN instance similarly to
the war crimes of Yugoslav wars—forgiveness or revenge are replaced by
karma. The consequences will come; no one can escape them. Punish-
ment is perhaps only an ephemeral meddling in all of this, which can do
some good things as earlier described, or some bad things, but does not
change things fundamentally. Revenges or rewards come and go, as in
Joe Satriani’s Buddhist entitled Lords of Karma: melodic sequences return-
ing to each other to explode in the refrain of harmony. A nirvana per-
haps. Taoism, as an older, more pragmatic, and less metaphysical teach-
314 Chapter 5

ing—a metaphysics of no metaphysics, one might say—more prominent-

ly offers this idea of no penal policy as best policy. That only a fool can be
king is a Buddhist curse, perhaps, but it is also a Taoist ideal, since it is an
Epimetheian teaching wisely choosing the numb and simple spirit as its
ideal. Perhaps only fools should be kings, but specific fools—simple, be-
nign, and backward, at peace with the world, and preferring inaction to
governmental (penal) hyperactivity.
Taoism, the ancient Chinese religious tradition, in the perspective of
political governing, does not favor penal intervention through general
norms regulating the behavior of the collective by the threat of repres-
sion. As in the earlier quote about the Buddhist-informed ruler, similar
normative advice appears, about the importance of inconspicuous opera-
tions for the benefit of the community—that is, prevention—which elimi-
nates the need for subsequent sharp and loud interventions of the penal
policy. The advice is offered in the following verse from the basic Taoist
text ascribed to Lao-Tzu, “the old child”: “When Primal Simplicity diver-
sifies./It becomes useful vessels,/Which, in the hands of the Sage, be-
comes officers./Hence, ‘a great tailor does little cutting’” (Bolsen 1996, 57/
Sec. 28). In similar spirit, contrary to intuition of American advocates of
the freedom to bear arms, who say they need it for self-defense, Taoism
talks about the harmful effects of weapons on the level of violence in
society, but also speaks of the decadence and harmfulness of policy that
is overly standardized and hyper-regulative: “The sharper the weapons
the people possess,/The greater confusion reigns in the realm. . . . The
more articulate the laws and ordinances,/The more robbers and thieves
arise” (Bolsen 1996, 115/Sec. 57). 6 Instead of a reactive criminal policy, a
wider set of preventive policies is offered that would discourage crime
before it happens. Such a policy might not bring superficial political prof-
it to the ruler but for a good ruler this is always compensated by the
welfare of the people: “The sage is self-effacing and scanty of words./
When his task is accomplished and things have been completed,/All the
people say, ‘we ourselves have achieved it!’” (Bolsen 1996, 35/Sec. 17).
The specific trait of this approach is that this prevention would not be too
complicated or standardized. It would be reclusive, mystical, and simple,
a nonpolicy of nonaction starting from the assumption that there is no
crime where there is no punishment. If this is the wisdom of knowing
when not to act in order to prevent a greater harm from bad policy or
self-complacent ignorance that in the discourse seeks to define the prob-
lem out of existence, I leave to reader to decide. The question is anyway
of practical nature.
 Punishment and the Sacred 315

ISLAM: PUNISHMENT AS AN OBLIGATION OF A RELIGIOUS-

POLITICAL COLLECTIVE

Islam, a religion that obliges a Muslim religious and political collective in

terms of punishment, is an antithesis of Buddhism. The sacred book of
Muslims, the Koran, provides explicit prescriptions for punishment of
the offenders that are binding in the Islamic law, the Sharia. 7 According
to Muslim belief, the Koran contains the words of God (Allah) that were,
through the angel Gabriel (Jibril), in Arabic transmitted to the prophet of
Islam Muhammad. Beyond the ultimate guidance from the Holy Book
itself, Islamic penal practice should ideally be built on verified statements
of Muhammad (ahadith) and his actions understood as normatively oblig-
ing tradition (Sunnah). 8 In certain circumstances, to this a consensus
(ijma) of the relevant clergy (mujtahid) on an issue of the Islamic law
should be added, as well as the authoritative judgments of religious au-
thorities in individual cases (fatwas). Also, the Sharia itself should be
distinguished from thinking and interpretation in judicial matters (fiqh),
such as those that concern punishment, provided by the Muslim clerical
scholars (ulama), adherents of the different schools (madahib), which are
often in dispute over the substantive and procedural issues of application
of the Sharia. The paradox is the following: such considerations do not
have sacral status as such, but there is no implementation without them
and, as we have seen, penal policy and punishment may be discourse but
ultimately as an effect they are implementation, practice filtered through
various layers of discourse, discourses on discourses, discourses within
discourses, and so on. 9
According to the Koran, respect for religion and its spreading is the
obligation of Muslim believers. In contrast to Buddhism and to an extent
Evangelical Christianity, Islam taken seriously does not offer the possibil-
ity of staying in the private sphere. It lays down the rules for the collec-
tive, including the ones that should guide penal policy. Islamic penal
policy that applies to the religious and political collective is essentially
dogmatized in the Holy Book. Metaphorical interpretation of penalties
explicitly provided by the Koran would be understood as heresy. Among
other things, these include the various penalties on the body that are
written in the Koran (e.g., 5:33, 24:2) and are still carried out in many
Islamic countries. These Sharia punishments (hudud), transmitted into the
practice of law by the mentioned priests/jurists (ulama), are traditionally
strict and at odds with punishment and the penal mainstream in the
contemporary West. Although, in principle, Islam opens space to think
about the necessary changes in a given time—the mentioned ijtihad—and
possibly adaptation of certain traditional practices to modernity, the Ko-
ran and Muhammad’s statements and actions with regard to punishment
prima facie do not create much space for improvisation. Within Islamic
discourse, this could be expressed as follows: the hudud quite clearly
316 Chapter 5

follows from the Sharia. As the word of Allah and Muhammad, the Shar-
ia is ideal, and where it is explicit—for example, in several instances in
the field of punishment—it should not be changed. Moreover, to do so
would be a grave sin, adding to the trend of making lots of haram has
been made into halal, a sign itself of the corruption of the mankind (see
30:42). However, while the simple textualism of “Islam equals the Koran
plus the ahadith” may be enticing, the devils of interpretation and imple-
mentation are huge, as is shown throughout this section and in the last
part of the chapter.
Furthermore, most of the Koranic discourse—the 6,236 the units of
revelation or simply the ayat—allocated in the 114 surahs of different
lengths and styles, do not offer any guidance for worldly punishment. 10
In addition to being quite repetitive, this discourse is mostly mystical and
contemplative in nature, and as such, located away from the practicalities
of the penal policy. Numerous repeated threats of punishment for those
who sin and turn away from God are actually not related to the temporal
punishment, in terms of the authorized penal policy that should be im-
plemented within the community, but the penalty that the sinner receives
through God’s action unfolding in destiny or, ultimately, penalty in
terms of the final judgment (see, e.g., the 40th surah, Ghafir, meaning “The
Forgiver”). Observing Muslims shall end up in heaven (Jannah), while
hell awaits the sinners (Jahannam), with the eschatological motifs working
similarly as in Christianity. 11 The fires of Jahannam, which are repeatedly
described in the Koran (e.g., 9:35, 9:68, 14:29, 38:59, 76:4, etc.), are Allah’s
punishment for the sinners and transgressors, especially for the most
serious sins, such as the murder of a Muslim (4:93). In this genre of
metaphysical and providential punishment, we should bear in mind that
Allah very soon settles his accounts, that is, “swift is God’s reckoning”
(3:19). To sharpness and severity of divine retribution (3:11, 8:52), the
same genre adds Allah’s mercy in sentencing. The Koran says that any-
one who sincerely repents can count on Allah’s forgiveness. This para-
doxical combination of rigor and grace is clearly expressed in the follow-
ing verse: “Know that God is stern in retribution, and that God is forgiv-
ing and merciful” (5:98). In short, Allah is something quite like the Old
Testament Yahweh, who often punishes but also forgives, and his penal-
ties for corrupt sinners are best administered through the twist of fate he
manages rather than through penal policies that should in his name be
implemented by a Muslim political collective. It is generally menace ver-
sus mystic, god cop and bad cop, two faces of divine authority that is
both threatening and merciful—in short, it is a definition of the sacred
(and traditional parental authority) (see 4:110, 33:5, 42:19–23). 12 But the
discourse of the Koranic revelation is also one of earthly penal policy
because it explicitly talks about the latter.
First, the guidance for punishment offered to Muslims in the sense of
the administration of justice in this world is likely to be placed in the
 Punishment and the Sacred 317

context of the general prohibition of murder. Although there are excep-

tions—for example, it is stated that Muslims should kill polytheists (9:5) 13
—the Koran also stipulates that a Muslim should not kill “except for a
just cause” (6:151, 17:33). This order is stated with reference to the Old
Testament revelation to “the Israelites that whoever killed a human be-
ing, except as punishment for murder or other villainy in the land, shall
be regarded as having killed all mankind; and that whoever saved a
human life shall be regarded as having saved all mankind” (5:32). Within
this general framework, the Koran then offers precise recipes for severe
punishment of various offenses involving violent crimes, such as murder
and armed robbery. The thirty-third ayah of the fifth surah (Al-Maida),
perhaps inspired by the pharaoh’s penal practices (see 20:71, 26:49), enu-
merates punishments for the most serious crimes against the community,
while the ayah that follows adds the possibility of sincere remorse as the
basis for forgiveness: “Those that make war against God and His apostle
and spread disorder in the land shall be slain or crucified or have their
hands and feet cut off on alternate sides, or be banished from the land.
They shall be held up to shame in this world and sternly punished in the
hereafter: except those who repent before you reduce them. For you must
know that God is forgiving and merciful” (5:33–34).
A rather broad category of making war and the spread of disorder
(hirabah) offered by the quoted ayah was, with some dilemmas of imple-
mentation of how much to cut, historically applied to road bandits likely
of less-gentlemanly style than those at the beginning of Kubrick’s Barry
Lindon and to rebels (Peters 2005, 36). Those lines may refer to a relentless
penal war against the infidels in general, who are judged to disrupt the
viability of a Muslim community, or to the crimes committed in the civil
state by common criminals but are judged to be highly damaging and
disruptive for the community. Random and unlimited feuding is prohib-
ited (2:178); it is thus clear that the death penalty (taktil) and painful
torture by crucifixion (taslib) with the same outcome, as provided by the
Koran, are to be performed in the community, assuming the procedural
authorization of the clerics in their role of legal experts who, within their
jurisdiction, have to deal with penal issues. In the case of punishing adul-
tery, it is expressly required for punishment to be public, with a hundred
lashes for both parties involved (24:2). 14 It seems that the public display
of punishment is generally preferable, considering that the Sharia penal-
ties should have a preventive effect; they are performed to maintain or-
der in the community and serve as a lesson to other believers, what is in
secular penal theories of the Old Continent called “general prevention.”
It is, in fact, something strangely similar to the public semantics of pun-
ishment on which eighteenth-century French republican reformers in-
sisted. Their utopian schemes, as Foucault writes in Discipline and Punish,
saw the penal sentences as “citizenship lessons” that strengthen the re-
publican spirit (Foucault 1975, 131, 137). But in Europe, and more gener-
318 Chapter 5

ally in the West, as we have argued, nothing similar was realized. The
guillotines retreated behind the prison walls to be abolished. This type of
radical penal republicanism, sort of a civil religion, thus remained re-
served for the Islamic world, inspired by the premodern revolutionary
discourse of religious type. In the West, the punishment was more
thoroughly desacralized.
Punishment executed in the community can be interpreted as a collec-
tive authorization of talionic principles, ensuring fair retribution (qisas),
as provided by the Koran (2:178, 5:45), but instead of vindictive excess a
retributive moderation is ideally preferred with the wider context of
somewhat Socratic precept that it is better to endure the injustice than to
unleash an unjust punishment (see 17:32, 5:28–29, 16:126–27). Such con-
ception of justice opens the possibility for settlement in some other way,
such as financial compensation (diyya) in the murder case, if it is ap-
proved by the family of the victim. Two things should be noted: first, the
ontology implicit in such a discourse of punishment is not one of the
individual protected by the order, endowed with inalienable rights, a
child of secular political liberalism and American Lockean declaration of
independence. Family (patriarchal) is the instance that can decide on way
to compensate for its individual members, and although murder of a
person is a disruption of the order, a matter of public law as in the
Western tradition, not of a civil suit, it is not as consequently fixed as a
public thing as, for example, the punishments for the sketched hadd
crimes, which are an offense against the ummah, “a violation of a claim of
God, i.e. violation of a public interest” and “claims of God, unlike claims
of men, cannot be waived by men” (Peters 2005, 53). 15 Outside of this
discourse, this corresponds to the pools of selfish genes deciding whether
they like money or revenge more and, in Durkheimian terms, it speaks to
how offenses against the sacred as such are still deemed more serious
than those against the persons. The discourse in its implementation is not
governed by gender equality: diyya for a slain woman can be smaller than
diyya for a slain main, as we have seen in the comparative chapter, even
the theological testicles not being equally valued depending on their
geography, but note that there is no specification of this as a part of the
Sharia, which is, in that sense specifically, discursively compatible with
the equality of men and women. 16 Furthermore, outside of the con-
straints of the Sharia, there is finally a category of punishment, often
physical, called tazir, “literally . . . chastisement for bad behavior” (Kusha
and Ammar 2014), which is decided upon by the judges (qadi). Though,
ideally, the purpose of tazir is quite the same as Sharia punishment only
bereft of ancient sacralization of godly infallibility; it is to return the
offenders to the right path, and to send a message to other members of
the community to refrain from the incriminated behavior. Not being a
part of the Sharia, their status is more volatile as connoted by the old
Greek word: “by the Hanafi school of jurisprudence they are defined . . .
 Punishment and the Sacred 319

as ‘the politics of punishment,’ and not as ‘the essence of punishment’”

(Ammar 2002). In our agnostic perspective, of course, the essence of pun-
ishment is part of a broadly understood religious policy of punishment.
Finally, regarding the penal policy on Sharia principles, we should
notice two more things, associated with applicability and the issue of
prison as a preferred means of punishment. The first refers to punish-
ment in the context since this general principle of penal policy does not
bypass the Sharia “text” analyzed here. As explained by one of the com-
petent religious interpreters on the website Understanding Islam, in excep-
tional circumstances a more lenient punishment is possible, not because it
would be a heretical mutation of punishment, but because the circum-
stances of application have been changed. It is something that Jeffrie
Murphy might say about the Sharia, justifying retribution but not its
applicability in the pressing circumstances that limit moral autonomy of
the observing subjects: “There are examples that can be found in history,
under all set of laws, where an apparent criminal was not punished be-
cause of the provocative circumstances under which the crime was com-
mitted. This principle is based on sound reasoning and there is no reason
why the courts of law in an Islamic state should not follow it.” 17 Second-
ly, in the context of the general presence of prison as a punitive technolo-
gy of the modern epoch, we should draw attention to the fact that the
prison, although it is not banned by Sharia law (see Peters 2005, 34–35), it
seems contrary to its spirit, especially if judged by some hadith where,
after the punishment is performed, any moral torture or disciplinary ac-
tion beyond that is strictly prohibited as overpunishment. 18 As a political
technology of punishment, prison is alien to the ancient catalogue of
penalties that was dogmatized long before its general expansion in the
eighteenth and nineteenth centuries to—at least in a Foucauldian narra-
tive—manage and govern the larger population inside and outside of
prison. Sharia punishments are swift and harsh. They inflict pain, maim,
or kill in the short term, unlike prison, which is understood as inhumane
punishment that slowly destroys the individual, giving him the opportu-
nity along the way to socialize with criminals, in a kind of school crime,
as it was observed by prison critics from its beginnings. In the words of
(moderately conservative) Pakistani Muslim theologian Javed Ahmed
Gamidi, that might remind the reader of Dickens’s condemnation of
Quakers’ prisons in nineteenth-century Philadelphia:
The jail punishment is an atrocious crime that man has committed
against himself. The whipping sentence is over in a while, hands are
cut once and for all, crucifixion ends a criminal’s life after an extreme
physical torture, and execution terminates irrevocably every string of
his relation with this world; but it is this punishment in which the
internal personality of a person is continually tormented. Some of his
daily routines in which everyone has an unconditional freedom, be-
come totally dependent on others. He sleeps and awakes upon the will
320 Chapter 5

of others. He sits and stands at the direction of others. His eating and
drinking habits are governed by others, and even in a matter as person-
al as relieving one’s self, he has to seek permission from others. He is
made to beg for a glass of water, a loaf of bread and even a puff at a
cigarette; and on many occasions must loose [sic] his self-respect to
obtain them. He is deprived from the love and affection of his parents,
wife and children, and is made to suppress some of his desires upon
which the Almighty has posed no restriction even in the holy month of
Ramadan, during which restraint and control are the keywords. In
short, he faces a hell on earth, in which he neither lives nor perishes.
(Understanding Islam 2003a)
This dramatization of the personal experience of a Muslim in prison
brings us to the conclusion of this short presentation of the penal policy
in Islam. In the Islamic discourse about crime and punishment, we see
the ontology of the individual who has autonomy, is directly interpellat-
ed by God with messages of punishment and mercy, a subject who can be
converted and who therefore bears guilt for his crimes. Except in extreme
exculpating circumstances, his responsibility implies acceptance of the
harsh but fair Sharia punishments. Of course, an individual should be
severely punished for the good of the community as well. In this sense,
associated with this discourse, one can offer a well-known organicist
medical metaphor: for the sake of the patient’s health it is sometimes
required to cut off a limb to prevent fatal infection as, for example, stated
by the Islamic scholar Amin Ahsan Islahi (Understanding Islam 2003b). But
this is by no means a utilitarianism in which the good of the individual
can be bypassed for the greater good of the sum of other individuals.
Every Muslim individual alone is responsible and as worthy as any other
individual in a virtual global community of Muslims (Ummah). Legal
punishment that the subject deserves is also a moral punishment, the
reaction to a crime for which a person is capable and who should suffer
when he commits it. Subject to the provisions of the principle of contextu-
al interpretation of each crime and punishment within the social context,
the penal discourse of Islam strongly demands the responsibility of the
individual: a crime of the individual responsible before Allah demands
retributive punishment of this individual.

CHRISTIANITY: TWO PENAL WORLDS

This rudimentary review of penal Christianity based in the lay reading of

the Bible involves two related but significantly different biblical tradi-
tions. The first is the one of the Old Testament, of strict justice providing
the catalogue of punishments for the Jewish community, and the other is
the one of the New Testament, of the gospel and the apostolic epistles
that already, within a testament, offer significant divergences. Similarly
 Punishment and the Sacred 321

to the Koran, in the Old Testament, the story is largely about punishment
from God, which can be radical, such as various diseases, epidemics,
slavery, destruction of certain cities, all the way to the great deluge,
which was administered as a collective punishment of forty days of pour-
ing rain for “all flesh had corrupted his way upon the earth” (Gen.
6:12). 19 To this punishment, as the part of the plan, only Noah escaped in
his great ark, accompanied by some of his family and lots of animals.
Similarly to Allah, Yahweh punished through destiny subject to his ad-
ministration, which is often more than simply retributive: “And if ye will
not yet for all this hearken unto me, then I will punish you seven times
more for your sins” (Lev. 26:18). In doing so, as suggested by the Book of
Job, He is not, nor should He be, accountable to man. 20
The Old Testament, however, in the framework of the Pentateuch—or
Torah, as it is called in the Jewish tradition, comprising the first five
books of the Tanakh—offers rules and instructions for life in the commu-
nity, supplanting punishment by “divine agency” with punishment by
“human agency” (Marshall 2001, 145–200). 21 On the one hand, it refers to
the code of ethics, which most importantly provides ten basic command-
ments to be obeyed for coexistence in the community (Exo. 20:1–17, Deut.
5:6–21). As categorical moral commandments given by the Lord, they
undoubtedly have repercussions in penal policy, just as Chinese moral
abominations are naturally followed by the codes of punishments. On the
other hand, punishment for certain offenses is directly legislated, as an
explicit penal policy. Such rules of the Old Testament today appear pret-
ty strict. They provide for the death penalty not only for murder but, for
example, for failure to respect one’s parents in the form of kicks and
curses (Exo. 21:15, 17, Lev. 20:9), as well as for violation of various sexual
taboos (adultery, illicit intercourse with human partners, animals, etc.).
Even a disobedient son, “a glutton, and a drunkard” has to be punished
by stoning to death by the community (Deut. 21:18–21). The life world
projected in the Old Testament discourse is brutal and ripe with vio-
lence—”the land is full of blood, and the city full of perverseness” (Ezek.
10:9), and these numerous sins and crimes usually lead to vengeful
bloodbath in which “blood toucheth blood” (Hos. 4:2)—and it is not too
surprising that the Old Testament justice and suggested penal practice
are of a similar nature. For example, physical violence, which is implicitly
taken as a normal phenomenon, is not in itself sanctioned. The Old Testa-
ment discourse tolerates physical confrontation if it does not leave any
lasting effects on the body or any serious disability. The attack is relevant
in terms of penal policy only in terms of its consequences, such as the loss
of eyes, arms, or legs, or other damage that occurs as a result of the attack
(loss of time or inability to work due to the attack) and in that sense it is
to be fairly compensated (Exo. 21:18–19).
It is an expression of one of the general penal principles of the Old
Testament and the ancient penal policy in general, the so-called talionic
322 Chapter 5

principle, the principle of literal retribution or retaliation, which implies

that some evil done by the perpetrator is returned by the same evil ap-
plied back to him through punishment. In comparison to mere revenge,
the difference is, at least ideally, in the procedural control of its applica-
tion: it is authorized by the community, which tries to prevent escalation
of violence. It is “revenge” politically regulated as a singular return of the
crime to its author, but there is a secondary possibility of economic com-
pensation as in the case of Islamic diyya. In terms of violence and punish-
ment, the principle, first, lays down the reproduction of harmful effects to
the convicted criminal: “And if any mischief follow, then thou shalt give
life for life, Eye for eye, tooth for tooth, hand for hand, foot for foot,
Burning for burning, wound for wound, stripe for stripe” (Exo.
21:23–25). 22
Second, as in the Talmudic commentaries, the Old Testament suggests
that it is not a principle that is to be applied absolutely and literally, but if
parties agree, it can be settled by material damages. Even in the case of
manslaughter, talion does not apply literally. Moreover, the suggestion is
to the ruling authority to be careful and keep the killer away from a
potential avenger that would take his life: “Lest the avenger of the blood
pursue the slayer, while his heart is hot, and overtake him, because the
way is long, and slay him; whereas he was not worthy of death, inas-
much as he hated him not in time past. Wherefore I command thee,
saying, Thou shalt separate three cities for thee” (Deut. 19:6–7). And in
the case that the identity of the perpetrator is unknown and there is no
one on whom the reprisal may be performed, the Old Testament pre-
scribes a surrogate in the form of symbolic ritual slaughter of cattle (Deut.
21:1–9). Before I move on to the New Testament, the question is: is this all
there is in the old one? It is the main tone but the document—the pluri-
verse of documents—is much more heterogeneous, which warrants a
short but important story.
There are minor prophets in the Bible that tend to get overlooked. One
of these, very important, is Jonah. The story of Jonah provides one of the
rare instances of God’s mercy against human retributive righteousness
(usually it’s the opposite). If Moses and Exodus are about retribution,
God’s and people’s stern punishment of transgressions, the point of the
Book of Jonah is about care, forgiveness, and patience, a logical choice for
the Yom Kippur afternoon haftoroh, teaching the importance of forgive-
ness (to the repentant sinners). The plot is simple. Jonah tries to escape
God’s mission by running away. As the storm rises, he is thrown into the
sea where a whale, let’s say a sperm whale with blunter teeth like Mon-
stro from Disney’s 1940s Pinocchio, eats him up as the storm calms, and he
spends some time in the belly of the beast. From this strange scenario a
memorable moral story about punishment develops.
The episode is, of course, as metaphorical as the big fish and waters
and has to do with deep contemplation: “The waters compassed me
 Punishment and the Sacred 323

about, even to the soul: the depth closed me round about, the weeds were
wrapped about my head” (Jon. 2:5). Jonah, himself repentant, then does
the job but has second thoughts. He is, in fact, angry and vindictive when
his preaching unexpectedly succeeds, thinking that the notoriously sinful
Ninevites should have been evaporated. A Buddhist parable-style finish
wraps up the story: God dries the plant, giving Jonah shade (sends a
worm, to be exact). Jonah is sorry for the poor thing, opening space for
God’s a fortiori point under the scorching sun outside Nineveh: how
could one be sorry for a single plant and not be sorry for the old-age
metropolis counting some 100,000 inhabitants (and cattle), the whole
population of figurative sheep went astray, or even more if this is a literal
reference only to children of the sinners: “And should not I spare Nine-
veh, that great city, wherein are more than sixscore thousand persons
that cannot discern between their right hand and their left hand; and also
much cattle?” (Jon. 4:11). Jonah is not acquainted with the arguments of
anti-speciesism to counter God on this matter of humans versus plants
and the scope of compassion. The discussion is thus closed and God’s
complicated anger management works. Mercy and rehabilitative work
trump retribution as the penal policy of the Bible in this one. The moral of
the story is thus more in line with the New Testament, which is, however,
also a complex document, containing more genres of punishment and
ideological positions about its forms and purposes.
In the genre of punishment by the action of God, the New Testament
contains certain parallels with the Old Testament, although earthly griev-
ing and annihilation is somewhat replaced by a temporal eschatology or
transcendent torment. Unbelievers may repent, and they shall be forgiv-
en, or they may be struck with punishment for sins in the form of suffer-
ing in this world. However, from the perspective of the New Testament,
that option becomes less important and consequently worldly punish-
ment by Yahweh is mostly replaced by projections of hell, that is, with a
metaphysical punishment executed in the otherworldly place where the
eternal flames burn and fry the sinners, as in the longish tirade by Joyce’s
Father Arnall (Joyce 1996, 151–52). After the final judgment, sinners shall
be cast into “a furnace of fire: there shall be wailing and gnashing of
teeth” (Matt. 13:42), similarly to the Koranic unbelievers who experience
the fires of Jahannam. But on the other hand, the message of Jesus con-
veyed by the gospels brings new understanding of justice. It explicitly
departs from retaliation and retributive settlement offered by the penality
of the Old Testament and later the Koran:
Ye have heard that it was said of them of old time, Thou shalt not kill;
and whosoever shall kill shall be in danger of the judgment: But I say
unto you, That whosoever is angry with his brother without a cause
shall be in danger of the judgment. . . . Ye have heard that it hath been
said, An eye for an eye, and a tooth for a tooth: But I say unto you, That
324 Chapter 5

ye resist not evil: but whosoever shall smite thee on thy right cheek,
turn to him the other also. (Matt. 5:21–22, 38–39)
Instead of vengeful punishment, a radical novelty of remission is of-
fered. Similarly, the Epistle to the Romans is about how evil is to be
overcome by the good (Rom. 12:14–21). Similarly to Buddhism, such a
position does not provide a sound basis for carrying out repressive penal
policy. It intends to overcome worldly misdeeds with the utopian recipe
of a peaceful dissemination of the Christian doctrine. Also, the original
concept of Christian conduct in this world suggests the policy of non-
interference in worldly matters, including those of punishment. The prin-
ciple that says one should render unto Caesar the things that belong to
Caesar and unto God the things that are God’s (Matt. 22:21, Mark 12:17,
Luke 20:25) can be interpreted in the following way: secular issues, in-
cluding the issues of penal policy, are for the evangelically minded Chris-
tian not of primary importance. The original Christians were the object of
violent punishment: flogging, pillories, and various spectacles with lions
in the Roman arenas that were in its prolonged decadence offered by the
empire. But to them, in their view, that did not take them farther away
from the kingdom of heaven. Moreover, it was more likely for things to
be the other way around: Jesus himself was tortured and crucified, and
found the strength to forgive, despite the brutality of torture on which
Mel Gibson’s Passion insists. The discourse of the gospels deals with a
man who is profoundly transformed to save his soul: it is not by punish-
ment but by moral teaching that one changes oneself and the others. It is
a discourse radically deviating from the Old Testament’s retributive
righteousness. In view of eternal life in heaven or burning in hellfire,
questions of punishment and crime control in this world become less
important or are circumvented by the expansion of a true faith. Although
there are apocalyptic lines that can be loaded with revolutionary poten-
tial (e.g., Rev. 21:5) their call seems to go beyond earthly revolution,
leaving people as they are, even if it is an unjust state of submission (e.g.,
Eph. 6:5–9).
However, the discourse in its earthly ambitions goes beyond “the
opium of the people.” The Epistles of St. Paul, the key figure of proselyt-
ism in the original Christianity, are also a part of the New Testament.
They already reveal certain ambivalence when they speak of proper
Christian life. It seems that the original moral principles, when faced with
the fact of a real life of the growing Christian communities, turn out to be
less practical. The discourse thus acquires legal and repressive overtones
where “as many as have sinned in the law shall be judged by the law”
(Rom. 2:12). Like the later Inquisition, with its processions of torture and
the stakes, the original Church is not so much interested in violent crimes
of physical attacks and murders with which we deal here, but in the sins
of the body such as adultery, infidelity, and heresy. However, violent
 Punishment and the Sacred 325

crimes are beyond manslaughter also present in dramatic examples of

patricide and matricide, as well as they are likely to be subsumed under
the misdeeds done by the broader category of “the lawless and disobedi-
ent,” who should be sanctioned by the law instead of turning the other
cheek, since “the law is not made for a righteous man, but for the lawless
and disobedient, for the ungodly and for sinners, for unholy and profane,
for murderers of fathers and murderers of mothers, for manslayers, for
whoremongers, for them that defile themselves with mankind, for men-
stealers, for liars, for perjured persons, and if there be any other thing
that is contrary to sound doctrine” (1 Tim. 1:8–11).
The further development of the doctrine, the institutionalization of the
Church and its historical and political influence—everything what Paul’s
discourse foreshadows—and later cleavages are beyond the scope of
here-declared textual analysis. Do they have an impact on the history of
penal policy and its present? It is indisputable, but that’s a whole other
series of painstaking questions having to do with the integration of Chris-
tianity in the social order, religion being “united with politics and eco-
nomics and law, just as they were united with one other” (Berman 1983,
63–64) against the revival of the doctrine of two worlds where the mun-
dane one is pitted against the kingdom of heaven (Berman 2006, 6). In-
stead of that and much more, before concluding the section, I shall limit
myself to few elementary remarks concerning the death penalty and pris-
on, the second mostly based in the text, the first with a humble historical
excursion in the development of doctrine since it illustrates the ambiva-
lences of two penal worlds of the testaments. I offer some reflections on
these tensions in general, before concluding the section and moving to
the final part of the chapter.
Historically, Christianity can be associated with prisons, which are
architecturally similar to monasteries and similar places of spiritual ele-
vation. Quakers devised penitentiaries, already in name suggesting pen-
ance, with theology working as an ideology of imprisonment. But, be-
yond indifference to earthly matters and the possibility of salvation
through prayer in desolate places, on the level of text it is more the
opposition to prison or at least its metaphorical usage in figures of spiri-
tual deliverance. There are many imprisoned figures in the Old and the
New Testament, as there are in the Koran. Recidivist St. Paul was impris-
oned on more than several occasions by the Roman authorities, which
influenced early Christianity (Wansink 1996, 12), but the jails of Egypt,
Babylon, and Rome are hardly a normative reference. In the Old Testa-
ment, Isaiah speaks of coming out of prison together with blind eyes
opening (Isa. 42:7). The motif that appears in the announcing of the Mes-
siah is perhaps less metaphorical later where the following interpellation
is uttered: “proclaim liberty to the captives, and the opening of the prison
to them that are bound” (Isa. 61:1). This is repeated in the gospels where
deliverance to the captive is preached by Jesus (Luke 4:18). Although the
326 Chapter 5

Gospel of Matthew, with its vigilant virgins, “unprofitable servants,” and

“everlasting punishment” does not sound too abolitionist, the line “I was
in prison, and ye came unto me” (Matt. 25:36) can be used at least as a
basis to develop the key elements of Christian response to prison in the
form of community emphasis on care and reintegration (Marshall 2002),
while various contextual readings may be offered to see more earthly
calls for amnesties, erasing any metaphor from biblical prison. The radi-
cal interpretation of the message of the gospel will develop a revolution-
ary call to secular liberation through Christ. Prison cannot be tolerated as
a necessary bad fragment of secular politics. Its immediate abolition is
instead required: “The power of the prison is in the spirit of death, and
death itself has been defeated by resurrection. These imprisoned people
belong to God, not Caesar. In the name of Jesus, unlock the cages!” (Grif-
fith 1993, 227, quoted in Ballor 2007, 493).
As is known, Christians first appear in the role of martyrs subject to
tyrannical death sentences following their prophet. They are the victims
of the executions of the time, an object of good Roman fun, as Moore Jr.
noticed. However, already in Aurelius Augustine and later and more
elaborately in Thomas Aquinas (the ultimate champions of Christian
theology, endowed with saintly statuses), the death penalty is promoted
as an institution established in the law and aimed at safeguarding the
common good. As the Church transformed itself from ecclesia obediens to
ecclesia regans, the story about the death penalty changed and the once-
odious institute found itself a theological legitimization. True, there is
some of it in the text itself, as we have seen, which ironically cannot
escape the context: epistles are already a discourse about the governing of
the community, which includes some sword yielding. Earthly powers are
legitimized and subjects called to obedience. Symbolical sharp metal to-
gether with fear and revenge suggests the death penalty quite strongly:
“For rulers are not a terror to good works, but to the evil . . . the minister
of God . . . beareth not the sword in vain . . . a revenger to execute wrath
upon him that doeth evil” (Rom. 13:1–4). The reserve is in the request that
it should be executed justly as can be inferred from the following lines:
“For if I be an offender, or have committed any thing worthy of death, I
refuse not to die: but if there be none of these things whereof these accuse
me, no man may deliver me unto them” (Acts 25:11). 23 As the general
commandment of “Thou shall not kill” is bracketed in the Old Testament
rich legislation of capital punishment, so is the turning of the other cheek
disclaimed when it comes to practical maxims of governing.
The executioner is an instrument of the sword, not a killer: in St.
Thomas’s missionary handbook Summa Contra Gentiles, “certain men
must be removed by death” for the common good (Bk3/Ch146). This is
legitimized with the aid of medical metaphors of amputation of limbs to
save the body, grounded in more general biblical metaphors of the cor-
ruption of the whole by the spoiled part (see 1 Cor. 5:6). After all, since
 Punishment and the Sacred 327

this valley of sorrow is not all that is, there are fewer scruples in execut-
ing someone; it might be a medieval thing, religious doctrine taken seri-
ously, against Camus who, in a secularized world, saw a problem of
imposing a death sentence that can only go with faith in afterlife, as we
have seen in the first chapter. It is also prevention or a rudimentary
deterrence at least, associated with a utilitarian figure of thought going
beyond Kantian retribution. Opposed to this, for a long time persistent in
the mainstream, is the ancient abolitionist strand found, for example, in
Tertulian’s De idolatria (On Idolatry) and Origen’s ideas directed against
state violence (see Brattston 2008): Christians are seen as ones who
should not execute as they should not kill in war, according to the con-
verted Roman lawyer, while the stories about brutalities of the Old Testa-
ment and Jewish theocracy appear as something contrary to the Christian
spirit of the New Testament in Origen’s Against Celsus, where the histori-
cal Jewish state is wiped out with its harsh penal practices by the same
providence that gave them the law to be observed (Bk7/Ch26).
And from the Thomist “Rosary Pope” who, at the turn of the century,
saw it as a “necessary and efficient means,” especially against obstinate
heretics who undermine the order, the twentieth century saw the turn of
the trend, culminating in demands to abolish the death penalty at the end
of the century. In the 1995 encyclical letter Evangelium Vitae, Pope John
Paul II stands against the death penalty but not absolutely, since it might
sometimes be an “absolute necessity” (Art. 56). The argument against it is
put on practical grounds since “such cases are very rare, if not practically
non-existent.” The same pope later simply calls it “cruel and unneces-
sary” but here it is a bit like in Beccaria with whom the pope seems to
agree, living in the times where Elias’s civilizing process has worked a bit
more. This ultimately leads him to draw practical conclusion more expli-
citly and, in a dialectical jump, say that he is against capital punishment.
From a careful relativistic penology—where “the nature and extent of the
punishment must be carefully evaluated and decided upon”—the papal
message arrived at a categorical Gospel of Life. 24 And thus it comes to the
thus-far latest pope who also exhibits rudiments of criminological rea-
soning, which should not be surprising if one evokes the older dogma of
papal infallibility. To Pope Francis, the death penalty has become “an
offense against the inviolability of life and the dignity of the human per-
son” and, furthermore, practical penal nonsense, unleashing vengeance
on the already neutralized (DPIC n.d.).
Although for historical studies and philology, and all possible social
and natural sciences explaining any change, this transformation of the
position on the death penalty appears as a relatively simple fact to ex-
plain, for theology and believers, the dynamic text at a point in time,
canonized into a whole, poses a relevant problem, one that moreover is of
importance for penal policy. If the text talks about different things, how
should a believer punish after all? Should he forgive sometimes, or al-
328 Chapter 5

ways? The Bible generally seems to advance from “don’t spare your own
literal brother, but kill him before the community as an example for of-
fending Yahweh” (e.g., Deut. 13:9), to a “love thy neighbor” attitude. Not
only should one abstain from hurting one’s neighbor, but should give
everything to him, cloak and a coat, if he sues you for the coat. Even
enemies become metaphorical brothers to be protected, culminating with
saintly discursive demands of perfect altruism: “Be ye therefore perfect,
even as your Father which is in heaven is perfect” (Matt. 5, 38–48). Love
especially those who sin, those who attack, and those who are traditional-
ly to be punished.
It is quite a radical turn, not only of punishment aimed toward sub-
jects but also in the image of God to which the subject has to conform,
from “God is punishment” of the apocalyptical prophets, with echoing “I
will punish” of the “day of wrath” (Zeph. 1:8–18), to “God is forgiveness”
of the gospels, preaching forgiveness and giving even to the enemies
(Luk. 6:27–41). “Whoso sheddeth man’s blood, by man shall his blood be
shed: for in the image of God made he man” (Gen. 9:6), the retribution
against murder of man reflecting the vindictive God’s image, is replaced
with another extreme image to follow, one of utmost humility, of the
sermon on the Mount of Olives with “Go, and sin no more” (John 8:11).
Then the epistles start concretizing beliefs into dogmas to govern before
the final revelation, a development seen in the Koranic suras as well. St.
Paul follows Jesus and the necessity of a sword appears, these two figures
symbolizing alternative penal styles; ultimately, for those interested in
Christianity and modern penal policy, they seem to merge into some
kind of hybrid “restorative punishment” (Marshall 2001) or, returning to
Christie’s important concept of the ownership of conflict, it can be said
that the message of Jesus is canalized into more horizontal ideas of con-
flict resolution, in the style of restorative justice of subjects finding peace
and resolving their problems before the state weighs in (see 1 Cor.
6:1–10). While this is also not hard to explain outside of the doctrinal
discourse, by means of social and other sciences, the question remains on
other discursive options for merging two penal worlds into one: could it
be salvaged by some kind of theology of the text?
To employ bit of hermeneutical ars critica on the Bible, there are vari-
ous ways to cope with this discrepancy of the holy message, since the
notion of the sacred is more often than not associated with harmonious
whole than with chaos. The easy way out, for those who forward an
atheist position, is to see the Christian god as a sadomasochist, as Daw-
kins did discussing the God delusion. Sadistic persons of the Old Testa-
ment enjoy excessive punishment while in the passion of Christ one can
observe the second aspect, of God punishing himself through his Son,
who is theologically a part of the composite godly persona. The psycho-
analytical joke, however, is probably not meant as a diagnosis but func-
tions as verbal vehicle to point to inconsistency. Nonsense is not to be
 Punishment and the Sacred 329

explained but explained away. The more theologically minded response

is to save the logic by means of drama, and infuse it with a theological
message that is easily accounted for by scholarly work that reveals bits
and pieces in context (the psychoanalytical joke provoking the touchy
feelings of the zealots is replaced with culture, politics, and authorship in
history). In other words, if theology is philosophy constrained by the
dogma of revelation, the same can guide efforts to save what is synchron-
ically incoherent by introducing drama as a tool of theology.
It is the idea developed by Girard’s friend Raymund Schwager who,
from von Balthasar s idea of theo-drama of transcendence, introduced dra-
matic theology to abstract the brutalities of the Old Testament. The New
Testament is the pivotal point of the Christian doctrine, that is, the death
of Christ buying of worldly sins (Luke 23:34). It is not sadomasochism of
death, capital punishment as a culminating moment of religion, but sym-
bolic salvation by the God and the man in the same person. Rage against
infidels, stark punishments for moral decay, deluges, poor Egyptians,
and the expelling of Satan, a mixture of texts according to Schwager,
become an illusion in this framework: “All the violence which is attrib-
uted to God by the Old Testament writers is an illusion, a projection of
human aggression” (Kirwan 2009, 34). The crucifixion of Christ uncovers
the scapegoating, its pointlessness, violence, and futility. It all comes to
the New Testament abolishing punishment. Sophisticated Christology
trumps the image of people sinning for eternity because of their evil
desires (Jer. 1:14), finding possibility for transcendence of this with divine
help, which replaces punishment with theological soteriology of a relig-
ious discourse: “Jesus’ response of non-vengeance delivers man from the
evil and hatred from which they cannot free themselves” (Kirwan 2009,
35). This is a drama of violence instead of its dialectics, with the help of
Girard’s (quasi-)anthropological mimetics of violence seeking peace in
the abolition of scapegoating so important for communities of desire and
imitation. A theological tenet of Christianity that also abolishes punish-
ment is an image of a human forgiving others for killing him. It is the
resurrection of Easter, the most important Christian holiday, with its
symbolic of new life waking against the historically stained human na-
ture and the eternal winter of punishment.
To once again come down to this earth, this is only an illustration of
the extreme interpretive options where something looking like punish-
ment appears as something else, psychology or liberation. Since I am
neither a psychoanalytically acute philosopher nor a closet theologian, I
shall finally content myself with the textual average. To sum up then: it is
worth noting that the text of the Bible in its entirety offers an ontology of
the individual responsible for his actions, similar to the texts of the two
other great religions. Moral punishment awaits the sinning individuals.
According to the Old Testament, they are to expect a secular punishment
on the body for a certain type of violence, often death, while the New
330 Chapter 5

Testament—at least at first, and in its fundamental part, the discourse of

Christ—is indifferent and offers a message of reform through the para-
dox of appeasing the criminal. Now that I have sketched the three penal
religions, it’s time to compare the discourses and then give some method-
ological principles to interpret the implementation of the sacred texts in
the field of penal policy.

CONCLUSION AND THE RULES OF ENGAGEMENT:

COMPARATIVE ONTOLOGIES OF PENAL RELIGIONS AND FEW
OBSERVATIONS ON THE APPLICATION OF THE TEXTUAL IN THE
CONTEXT OF PENAL POLICY MAKING

I have started from the precept that religion is an important factor that
shapes social and political relations in the world today and that its pos-
sible influence on penal policy should be investigated. As a preliminary
interpretive step in that research direction, this chapter has probed into
conceptions of penal policy in the religious texts of Buddhism, Islam, and
Christianity, and tried to ascertain a picture of the penal subjects these
religions offer, their understandings of punishment, and which penal
policies they prefer. After summing up the results of this probing, this
concluding part points to different problems in the interpretation of in-
fluence of religious texts on penal policy and offers, without any pretense
on systematicity or completeness, five provisional methodological princi-
ples to understand the modalities of religious shaping of penal policy. In
the end, a few final ambivalences of interpretation of religious texts and
their impact on penal policy are suggested by examples of some religious
traditions that were not analyzed in the main part of the chapter.
All three briefly presented religious discourses, in significant indirect
and direct ways, exert influence on penal policy. The Islamic concept of
punishment in different variants, including the more direct Sharia reci-
pes, translates into comparative penal systems of various countries. A
fundamentalist reading of the biblical Old Testament would lead to a
similar policy of punishment, probably even more stern and lethal; re-
cently it has not been of much practical importance in terms of the direct
control of penal policy, although the power of fundamentalist religious
beliefs in various populations and its indirect impact on penal policy,
especially in the United States, should not be underestimated. The New
Testament, however, is inclined to forgive. It is not a discourse of secular
penalties and the establishment of penal policy of the human collective,
nor is it the case in Buddhism, where criminals will generally not be
changed by punishment but by moral lessons and retreat from punish-
ment to the politics of giving. Although Islamic discourse, with a strategy
of the moral transformation of individuals, directly prescribes punish-
ment, from the original texts of Buddhism and evangelical Christianity
 Punishment and the Sacred 331

the moral reform of the individual, not the criminal policy of the state,
can be deduced.
In terms of the ontology of the criminal human being, all three dis-
courses in their own ways talk about the same responsibility for the crime
before God (which, for the Buddhists, obviously is not particularly per-
sonalized concept: moreover, it’s a religion without God in Heidegger’s
words) and before their fellow human beings in the community. This
responsibility is primarily invested in the morally autonomous individu-
al, not in the social or political environment, though in either of the dis-
courses there is no obstacle to work on those environments, or at least to
take them into account and thus solve some problems of penal policy.
However, if total social, political, and other determinism of human activ-
ity were to be accepted, dissolving criminal activity into factors beyond
individual human control and agency, religions would lose their mean-
ing as moral discourses of reform that strive to change individuals. That
is their primary difference compared to, for example, some variants of
Marxism (insofar as it is not a secular political religion) that speak of
economic determinism and derive consequences from that position on
the other analytical levels (social, political, ideological, moral), which is
covered in chapter 7 about the scientific discourses on crime that often
are, but far from always, in this ontological sense opposed to religious.
However, the difference between the displayed discourses can be ob-
served at the level of standards for the basic recipes of penal policy,
summarized in answers to the question of whether punishment is needed
and what form an ideal penal policy should take. Buddhist texts essen-
tially do not advocate punishment and, beyond orchestrated human ac-
tion organized in the state, leave the reaction to crime to the karmic
police, and the discourse of New Testament Christianity leaves punish-
ment for the final judgment and the next world and insists on spreading
its teaching in peaceful ways, offering paradoxes of the reform of sinners
and criminals through backing down. Islamic discourse, however, al-
though operating with grace and forgiveness, speaks of the need of penal
repression in the religious-political community. Crimes require just pun-
ishment in this world, like in the normative world of retribution pre-
scribed by the Old Testament.
Stark differences can also be seen in the preferred penal policy: Bud-
dhism mostly suggests loosening of penal repression and intelligent indi-
rect prevention, and the like could probably be derived from the central
parts of the New Testament. On the other hand, Islam and Old Testament
Christianity, in penal policy, put emphasis on repressive activities aiming
at the offenders. In a world with large and in many places still growing
penal populations, it was interesting to review the sacred texts searching
for each of their positions on prison, which still dominates modern penal
policy as the chief form of punishment for serious offenses. This test
provided interesting results: while it seems that it isn’t favored in Bud-
332 Chapter 5

dhism, Islam seems more to oppose to it, even though it does not explicit-
ly prohibit it. It is similar in Christianity, although it seems to be most
compatible with the idea of Christian reform of the soul through penance,
which may for the grave sinners be practiced in solitary contemplation
behind bars and hard work that is at the same time a work on one’s soul.
This is in line with the Benedictine principle of ora et labora, pray and
labor, though it is by no means directly prescribed by the text itself in the
sense that, for example, Islam prescribes lashes for adultery. The Old
Testament, in terms of prison, is probably closest to Islam: the dungeon
appears as a place of torture the chosen and the righteous and is perhaps
necessary for procedural purposes, but it is not preferred as punishment
by itself. Pentateuch operates with other strict means—those of talionic
retribution and death. Finally, in association with this, the death penalty
is clearly placed in the discourses presented: in Buddhism it is generally
avoided, as well as in the New Testament Christianity, while in the cases
of the texts of the Koran and the Old Testament, it is in some cases
directly prescribed, including the form of execution.
With all possible disclaimers and nuances discussed earlier in this
chapter, Buddhism and New Testament thus near each other in this com-
parison, the latter not being “far from Buddhahood” (Reps and Senzaki
1998, 36), while the same can be said for Islam and the Old Testament.
The familiar table appears (see table 5.1), although with even more dis-
claimers than usual, due to the heterogeneity of the texts themselves, not
to speak of the variability of their interpretation in practice and their
employment as devices of legitimization. Imprisonment was used almost
everywhere in the world. As banishment, it could be peripherally be
associated even to Buddhism, so these “no’s”—especially on the left and
right columns of the table—are much closer to conditional “yes.” There
are some pretty bad incarnations in Buddhist sutras and stories and we
have seen a case of stern punishment yielding results. There is lots of
mercy and opportunities to repent in the Koran and again, unlike the
penitent Quakers, the biblical Messiah seems to release the believers from
prison. And there is the epistle to the Romans, earthly judgment, and the
sword of authority in the New Testament, as well as the mercy of the
Book of Jonah in the Old Testament. Consequently, someone—perhaps a
cunning and manipulative shyster—reading religious texts might turn
every “no” into a “yes” and vice versa, both in the second and the fourth
row. But my belief is that the current state of the table does not reflect
bias and deep misunderstanding, but a reasonably fair lay assessment of
general leanings at least. In any case, the analysis with its details, turns,
and developments—its methodology, so to say—is present here to check
the means that were used to arrive at these provisory conclusions.
What is, I hope, beyond dispute is that the analysis of texts shows that
all religions take a position about the individual as morally responsible
instance, which can generally justify secular punishment and the forma-
 Punishment and the Sacred 333

Buddhism Islam Christianity

Old Testament New
Testament
Ontology of Morally Morally Morally Morally
the penal responsible for responsible for responsible for responsible for
subject crime, can be crime, can be crime, can be crime, can be
reformed reformed reformed reformed
Desirability of No Yes Yes No
punishment of
the
perpetrator
Preferred Prevention, Just repression Just repression Prevention and
penal policy remission and and strict and strict moral doctrine;
moral work punishment of punishment of indifference to
grave offenses grave offenses the political and
policy matters
Prison No No No No
Death penalty No Yes Yes No

tion of an institutionalized penal policy of a political community. Equal-

ly, the postulated possibility of reform opens up the space for various
preventive, reformist, and rehabilitative approaches instead of repres-
sion, although it should be noted that for religion, reform and/or rehabili-
tation are matters of individual contemplation and—given community
help and the fact that religion is collective phenomenon working in the
local micro-communities of believers assembling in temples, churches,
and mosques—a sinner’s conversion is, in principle, a personal process
that cannot be schematized or solved by means of any secular policy,
penal or otherwise. Once this is said, there remains a difference in em-
phasis, as we have seen. The texts of the Koran and the Old Testament are
more inclined to standardize punishment and insist on repression; the
fact that they have catalogues of more or less accurately stated penalties
at the level of a literal reading of the text does not leave room for interpre-
tational bravuras. In Buddhism and New Testament Christianity, there
are no such general tendencies, although in the latter, as the apologists of
Christianity have argued, there is something ontological, associated with
freedom of conscience and grace, going against reformatory penality gov-
erned by secular discourses. For example, C. S. Lewis, the author of the
Christological Chronicles of Narnia, was skeptical of “some pattern of ‘nor-
mality’ hatched in a Viennese laboratory” and he consequently discarded
penology, claiming that “barbarous things have barbarous names” (Lew-
is 2011, 92–93). This postwar statement pitting the psychiatrists against
the priests, in the quest for the pastorate of the soul beyond questions of
punishment, with its secular echo in Kesey’s/Forman’s countercultural
334 Chapter 5

classic ending with a literally lobotomized Randle McMurphy, works for

other religions, of course.
Before reflecting on the context, we could finally imagine a puzzle of
examined texts, which tests the compatibility of their penal policies,
bracketing matters of identity, culture, psychology, population, political
economy, and realpolitik that are unavoidable contextual facts in any
religious dialogue. From the analysis presented, it first follows that relig-
ious texts fundamentally allow compatible penal policies based on the
shared ontology of punishment offered by individualistic discourses. All
the texts agree that the subject is free, responsible, and can be punished.
Secondly, it seems that Buddhism and New Testament Christianity offer
compatible blueprints for penal policy and thus the possibility of a com-
mon penal policy that would be tolerated by both religious populations.
The other question is, of course, if moral purity and enlightenment are
utopian, but all the differences put aside, the point is that these religious
discourses have, if not similar, then quite compatible penal worldviews
that highlight moral work and restorative justice beyond the state, be that
good or bad, naïve or wise. Give to the thief so that he is not one, or turn
the other cheek to the aggressor: nonviolent prevention and rehabilitation
seem to offer a better solution than retributive punishment, which opens
the prospect of a broad platform of cooperation in some of the possible
worlds, at least.
On the other hand, explicitly outlined penal discourse of the Koran,
on which Islamic fundamentalists insist, and the talion paired the sharp
catalogue of punishments of the Old Testament on which Christian fun-
damentalists often insist, are quite similar in essence. I leave to the reader
to decide whether this leaves an open space for some ecumenical penal
dialogue, while the geopolitics and identity wars between the jihadists
and the crusaders may continue unscathed. Given that the analysis of
religious discourses offered in this chapter ideally or intentionally goes
with zero dose of normativism or ambitions of policy design, I should
rather complement these ecumenical thought experiments with more
careful methodological principles, placing the previous textual construc-
tions in their social, historical, and political contexts, in an analytical, not
overtly normative and political, sense. The final part of the chapter is
guided by the question of what should be kept in mind when trying to
answer the question of how sacred texts really work in shaping of penal
policy. It is no longer Musil’s sublime sense of the possible but just an
ordinary, prosaic sense of the real. Here are several provisional remarks
on how to interpret sacred texts or, at least, concerns about the things
than one must be careful about when making connections between textu-
al religion and penal policy making, followed with some final nods to the
comparative chapter and the suggestion of the much wider field of relig-
ions and beliefs, old and new, to which this kind of analysis can be
applied.
 Punishment and the Sacred 335

We deal with the mysteries of evil, mysterium iniquitatis, in chapter 8.

Indulging in skeptical reflection and modes of mysticism based on the
history of philosophy, we cannot give religion the right of a discourse
that provides ultimate sense. One thing is sure, however: whatever evil
might be, evil in the text and evil in application are two different things.
Furthermore, evil in the text, if we judge a part of the text to be such, may
be evil of the context that is lost and now keeps haunting us, following
the irony of dogmatization of the message. The first question thus con-
cerns the origin of text, or its causal power in terms of penal policy. Is
what we see today as the brutality of the punishment inherent in the Old
Testament, in Islam, and in Sharia ideas about punishment, really the
thing that is important? Ideas or discourses seem to have power of their
own when they offer meaning to people and serve some interests or
powers, but did these specific ideas on punishment begin in the texts or
did the texts have a primary cause somewhere else (which is arguably
important)?
This is not a theological question about the truth of God’s revelation
but a social scientist’s search for possible causes in the realm of the secu-
lar. The possible objection of political sociology that deals with premod-
ern societies could, when discussing reasons for the severity of Sharia
punishment beyond God’s will, may point out that the “original Islamic
expansion and its most powerful later converts (in terms of military
prowess) came from pastoral culture” and that “these are the most male
dominated, violent, and warlike of any societies” (Collins 1974, 425). Pos-
sible normative point would be that the analyzed penal policy is not to be
taken as an essential and unchangeable content of the sacred text but
rather a concession to a particular culture, politics, and the context in
which the text was formed, and thus its severe demands can be dismissed
as a binding norm for contemporary penal policy making in a more pac-
ified and civilized society.
For example, observant Muslims in Bosnia and Herzegovina are argu-
ably not less Muslim than those on the Arabian Peninsula nor do they
less accurately read the Koran because of not adhering to some of its
penal norms or because of the fact that there are differences in penal
policy between secular federal BiH and Saudi Arabia. However, regard-
less of their origin, once the specific ideas get fixed into dogmas of a text,
they spread to other social contexts and shape them politically if the
situation is right. Although fundamentalist interpretation is not the only
one possible, the force of the text itself will usually find followers who
will call on its literal reading, and those who try to circumvent the literal
reading and adapt it to the spirit of the times will be charged with blas-
phemy, itself calling for punishment. When faced with the question of
how much of the holy text to take seriously and how much to discard as
an archaic tribute to the culture we have forgotten or surpassed, the
fundamentalists offer an understandable binary answer: It is holy from
336 Chapter 5

the beginning to the end, and thus it is not a menu to “pick and choose”
from but an “all or nothing” situation. Take it or leave it in its entirety, an
ironically particular interpretation. Go to heaven or burn in hell.
Second, closely associated with the first point, sometimes sacred text
appears to directly translate into the penal policy of a state. Today this is
mostly the case of Sharia law and of Islamic countries that shape their
penal policy within that system of religious-penal discourse. When the
question appeared on the already referenced useful website Understand-
ing Islam, on the issue of cutting of the hand(s) for theft, which the Koran
requires (5:38–39), the answer was, without much explanation, that it was
meant literally, not metaphorically. The effort of interpretation was, how-
ever, invested to show how plural doesn’t mean both hands (since it is
used in the same way as “hearts” and “mothers” in other places of which
there is only one for each subject) and that “[n]othing in the context
indicates that the words have been used figuratively” (Understanding Is-
lam 2003c), which is an act of interpretation of what is today a highly
controversial issue of crippling the body for the act of theft in the context
of twenty-first-century global economy, cultural trends, and politics. On
the other hand, a site called Misconceptions about Islam invests consider-
able interpretive efforts to prove that cutting the hands is just one of the
possibilities given by the text that by no means insists on amputation: “to
cut” and “hands” are in this reading used metaphorically and the term
may mean marking or even cutting the means to steal. 25 Different Arabic
terms used in the sacred text in this perspective are metaphorical or met-
onymic and require interpretation that precedes the illusion of literal
application.
I won’t belabor this issue here, since I am in no position to do it, but
again highlight that one should be very careful facing the claims about
direct transfer of text to policy as a simple recipe. The game of penal
policy is not possible without interpretation (which is, after all, no sur-
prise since even cookbooks or primary school homework assignments
sometimes require sophisticated hermeneutics): the ambiguity of the text,
conflict with other parts of the text and other sacred texts, its or their
application to a case—some or all of these questions will appear when it
comes to implementation. For example, the mentioned hirabah, waging
war against Islam, can apply to drug crimes: if drug trafficking is judged
to create a lot of damage to the Islamic community, then this opens the
possibility to treat it as hadd and apply a harsh sentence, in opposition to
the palliative policy of “harm reduction” in the style of some European
countries regarded as efficient in utilitarian terms. But the opposite is also
possible. By means of ijtihad one can come to another conclusion, closer to
drug abuse policies in the Netherlands or Switzerland: it is interpretation,
since modern “drugs” as objects of sanctioning are not mentioned in the
Koran as such, if we do not use a pretty wide definition of intoxicants—
which would subsume alcohol under drugs, which could perhaps be
 Punishment and the Sacred 337

better warranted by the chaotic beatnik adventures described by Ke-

rouac, where among all the bennies, goofballs, and Mexican pot, liquor
still serves as the main mind-altering fuel, ambivalently leading one to
both satori and cirrhosis. Which is again: interpretation. 26 A strict policy
toward the possession and trafficking of drugs does not necessarily have
inspiration in the sacred text. Malaysia, with its majority Muslim popula-
tion and Sharia courts, can come close to it, but the similarly strict penal
policy in Singapore that comes down to death by hanging may be
founded, as we have seen, on completely different grounds.
Third, not only does a penal policy not have to be grounded in relig-
ion but the members of a particular religion may, historically and empiri-
cally speaking, act in diametrically opposite ways to the textual pro-
nouncements that should be binding for them. Peaceful messages may
work but often are a weak barrier for outbursts of group violence, various
pogroms, and practices of sacrificial goating. For example, instead of a
nonviolent penal policy on the basis of the gospel, history will frequently
exhibit (politically organized) religious followers that in the name of re-
ligion carry out acts of violence outside of any formally rationalized pe-
nal policy. The history of violence that was performed by Christians too
often stands in perplexing discrepancy to evangelical messages of the
revealed teaching: “There is the Sermon on the Mount, the parable of the
good Samaritan, the admonition to ‘turn the other cheek,’ the tradition of
the nonviolent martyrs tortured and fed to the lions. Yet the historical
record shows very little altruism outside of the sermons of Jesus, and a
great deal of ferocious cruelty practiced by Christians, from the very
earliest period up through the 18th century” (Collins 1974, 425). Collins
also writes that, as soon as they gained social and political power, Chris-
tians in the Roman Empire began to persecute and kill the gentiles, such
as the philosopher Hypatia in the early fifth century. According to at least
one of the accounts, this Alexandrian Neoplatonist (later tailored into a
feminist icon) was lynched by the Christian mob lead by certain Peter
(the Reader, if it is allowed to capitalize a minor cleric); allegedly, she was
dragged through the streets, her flesh was peeled off her bones with tiles,
perhaps sharp shells such as pinna nobilis (pen shell), and afterward, she
was burned alive (see Collins 1974, 426–27). Violence in such cases has
nothing to do with the text although it may be legitimized in such a way
by in-group members and annalists. The Church, not only in terms of the
Inquisitional torture, historically demonstrated considerable persistence
in producing violence against the gospel. The immediate point for study-
ing violence and punishment is that sacred texts often can function as a
loose moral regulation struck down in effect by other forces; instead of
performing penal policy based on the text, the historical stage will be
taken by primordial punishment of lynching of the Other, fomented by
the passions of religious identity, or by the terrorist torture employed by
338 Chapter 5

the nonsecular hand of the government using various arcana imperii to

keep the population subjugated.
Fourth, the interpreter of religions as agencies of penal policy can
expect to encounter the usual partisan distortions of the texts, over-
stretched readings, depending on the political, ideological, and religious
position of the author. In this review discourses of the great religions—
although I readily acknowledge it is hard to eschew biases—I have hon-
estly tried to extract their ideal message, which illustrates the possibilities
of the widest range of application in different contexts of violence and
punishment. However, the common approach is the one of politically
colored contextualism. Although starting at the margins against the es-
tablishment by historical figures such as the Buddha, Jesus, and Muham-
mad, great religions have historically been part of specific political as-
semblies in which they had a function in shaping of violence, which is not
necessarily linked to their universal message. For example, Christianity
may be read as a counterstate religion, and Islam as a religion searching
for governance and power, mixing religion and politics. Power of insur-
rection against power of conquest. Perhaps it is so, but outside of the
context, to “render Caesar’s unto Caesar” may be read as agnosticism
toward power, as we have with some qualifications attempted, although
opposite prominent examples have not been lacking, especially when
Christianity was in a position of power. One only has to remember Que-
vedo’s seventeenth-century treatise in the genre of the imitation of Christ.
Beyond praising the beauty of Quevedo’s language, Borges was equally
stunned by the arbitrariness of its method and the banality of its conclu-
sions (Borges 1975), since the point of Politics of God and Government of
Christ (de Quevedo 2002) was to read the gospel as a complete compen-
dium for the art of governing, including punishment. There is, on the
other hand, an observable tendency in contemporary Western academia
to trash Christianity and exculpate Islam, as in the story of the Crusades,
which have become an archetype of colonialism and one of the great
symbols of Western historical guilt. This may be well historically sub-
stantiated or attacked as a myth, but often in academia different stan-
dards are applied to Islam. For example, Giordano Bruno’s death, in
blazing fire and with a wedge in his mouth, is opposed to the religious
tolerance of the Mughal ruler Akbar. On the level of the text, Moses’s
advice and commands of slaughter from the Old Testament (e.g., Exo.
32:37; Num. 31:17–18; 1 Sam. 15:2–4) are opposed to the cherry-picked
verses that testify to Koranic tolerance. So far so good, one might say, but
at the same time, for fundamentalist violence made in the name of Islam
today, a decontextualized Islam is often accused, one of fundamentalist
misreading. So far, so good, one might say again. Religions are quite
heterogeneous and function in different way in different contexts, but it
seems that in principle you cannot have it both ways: Koranic tolerance
and decontextualized violence. If it is tolerance governing the text, then
 Punishment and the Sacred 339

the fundamentalism of a “literal” reading would more probably bring

peace than carnage, spiritual jihadists instead of terrorist moharebs.
Thus far: the causes of punishment may not actually reside within the
sacred text itself. Directness means a particular interpretation and what
looks the same may not be the same. Punishment compatible with relig-
ious text may not be religiously motivated. The holy text may not oblige
its nominal followers to commitment, and they may engage in practices
opposite to the punishment prescribed by the text, which then says noth-
ing about the text itself. Trust no one, the sacred files are like the X-files,
and the subject of penal religions is a terrain of distorted interpretations
and political projections. To round up these reflections with a final point:
to these four negatively phrased methodological precautions, I should
finally add one positively formulated principle for the research of penal
religions that is particularly important in secular societies. It seems to me
that it is generally a valid position to perceive religious discourses as
forces that are, depending on the historical context and other circum-
stances, mobilized in shaping penal policy. Commenting on the applica-
tion of Joachim Savelsberg’s “culture in action” approach in interpreting
the influence of religious discourse in penal policy, Melossi rejects the
view that, for example “Catholic and/or Protestant discourses on relig-
ion” are “‘determinants’ of punitive attitudes” and, like Savelsberg fol-
lowing Ann Swidler, sees them as “resources available within a cultural
‘toolkit’” (Melossi 2001, 415). 27 This, first, means that religious discourse
should be taken seriously and should not pretend that the subject is com-
pletely free to choose his attitude as from a shelf on the supermarket.
Subjects are embedded in their traditions where they adopt their con-
cepts, specific vocabularies, technologies of action, and so on (i.e., to fol-
low the metaphor, it is a specific toolbox, not the virtual and unlimited
with all kinds of tools as in Wittgenstein’s Philosophical Investigations).
Religion is often in the background or an important part of these tradi-
tions. But Melossi, on the other hand, points out that “the relation be-
tween religious ethos and punitive practices is not one of causal determi-
nism” (Melossi 2001, 403), and religious discourses thus become one of
the mutually related elements in the equation of factors determining pun-
ishment that are placed within a broader balance of power, where they
can be mobilized or suppressed, depending on various social and politi-
cal circumstances (i.e., religion is a tool to employ or even a toolkit to
choose from within a wider toolbox of cultural artifacts).
Another way to convey this methodological message can be found in
the work of the influential theorist of criminology and punishment David
Garland. According to Garland, in the background of policies of punish-
ment are certain penal mentalities and cultural dispositions that include
“traditional cosmologies, folk prejudices and ‘plain common sense’“
(Garland 1990, quoted in Cook and Powell 2003, 70). Even if he is mostly
known as the theorist of “the culture of control” (Garland 2001), Garland
340 Chapter 5

is also ready to stress that the idea of culture as “unified and bounded,
totalizing in its comprehensiveness, deeply imbued in group members,
and distinctive of a particular people or a particular place,” doesn’t work
too well today (Garland 2006, 429), and he builds explanations using
more specifically political mechanisms (see Garland 2005, 362). This gen-
eral statement on the relative importance of “the cultural,” however, sets
the terrain for an interpretation of indirect impact of a doctrinal system
on punishment, and there is no obstacle for seeking religious foundations
of penal policy as shaping penal worldviews. A good example can again
be found in the United States. Cook and Powell (2003) in a qualitative
survey of the views about punishment in geographically remote areas of
the federation—in the states of Mississippi and Maine—identify different
penal mentalities that justify the here-proposed down-to-earth distinc-
tion between two separate testaments that precede any operations of syn-
thesis offered by dramatic theologies.
In their sample, those respondents who exhibited directly vindictive
retributive and punitive mentality often explicitly referred to the Old
Testament, especially to the talionic principle. Christian fundamentalists
in the United States believe that the Bible provides the basic principles for
a complete penal policy that should not be questioned, including an un-
equivocal mandate for the death penalty. In this way, nominally a secular
state can function as an indirect but de facto theocracy in some policy
issues if there are sufficient numbers of citizens who are religious funda-
mentalists (theocracy as textocracy through democracy). Indirectly,
through public opinion and votes for representatives who promote a
public policy close to their worldview, they can exercise a decisive influ-
ence on penal policy making that corresponds to their religious doctrine.
If a significant part of American citizens “stick to literal reading of the
Bible” (see Wiecko and Gau 2008, 546) and interpret the death penalty in
such a retributive manner (see Bader et al. 2010, 102), one doesn’t have to
wonder if the penal policy turns out to be quite punitive in some states. (I
suggest to the reader to compare the red and blue death penalty maps of
the United States with those of the presidential elections.) But as we
warned in the beginning of the chapter, when talking about the impact of
Christianity on penal policy in the United States, one should be very
careful. Cook and Powell show that, in contrast to the vindictive invoca-
tions of God of the Old Testament, among American Christians discuss-
ing punishment, the references to the New Testament also appear, calling
for “unconditional love and forgiveness” (Cook and Powell 2003, 79),
which characterizes neutral penal mentalities, those indifferent to secular
punishment, and those who are against any punitiveness. Every time one
associates religion and penal policy, one should bear in mind that even
“Christian fundamentalists are a diverse group that should not be easily
stereotyped” (Unnever and Cullen 2006, 190) and that, in the end, a lot
depends “on the individual’s relationship to the scriptural interpreta-
 Punishment and the Sacred 341

tions” (Cook and Powell 2003, 86). 28 And that, of course, does not neces-
sarily mean that the subject has unconstrained choice to frame his feel-
ings on the matter, as was previously suggested.
This chapter, especially its methodological precautions from this sec-
tion, should combine nicely with ideas about research in the comparative
politics of punishment and their application in concrete cases. The ana-
lyzed trio exhausts world religions, constituted by the number of follow-
ers, geographical distribution, and the universalizing potential. In social
science, they are not to be venerated and crystallized through uncritical
reproduction not far away from normative proselytism, but the empiri-
cally minded analyst of comparative punishment should take them into
account as the potential and actual forces still shaping punishment in the
modern world. However, one must finally not forget that a number of
other religious teachings have (or potentially have) an impact on a signif-
icant number of subjects of the world’s population, and therefore carry
important implications for an understanding of punishment. By briefly
dealing with some of them, as well as with some of the world religions in
specific cases, at the very end I try to further illustrate the complexity
present in both elements—the reading of the texts and their application,
and their combination—that affects other religious and doctrinal systems
as well. These cases again show ambivalence in the relationship between
religion and punishment. Although a serious analysis of punishment in
Israel, India, China, and Japan has to consider the precise role of such
ambivalence, it is clear that one cannot speak of a direct and unambigu-
ous effect of religion on various forms of punishment. Let’s start around
the clock of earth, going from the west to the east, in presenting cases of
Judaism, Hinduism, Confucianism, and Buddhism, a bit similarly to the
way we did with our comparative lineup.
Dealing with the State of Israel, whose history and present of penal
policy is arguably of secular nature, I have not dealt with religious issues.
Its prison system has its explanations; for example, the reluctance con-
cerning the formal application of capital punishment beyond the histori-
cal cases of rehabilitated Tobianski and Eichmann does not have much to
do with the thickets of rabbinical interpretation and Maimonides’s un-
easiness regarding the death penalty but more likely with, among other
things, the agonizing experience of the Holocaust. That said, however,
various self-authorized vigilante agents of punishment, be it Baruch
Goldstein or Yigal Amir, as we shall see, draw heavily on religious heri-
tage to justify their actions as punishments. Studying the rich world of
penal Judaism still makes much sense, whether it is the essentials—the
613 commandments (according to the traditional classification by Maimo-
nides) from the Torah (the biblical Pentateuch dealt with earlier) as the
backbone of Jewish religious law (Halakha), which, historically speaking,
was interpreted through Midrashim and practically applied and institu-
tionalized in the law of the community (Takkanah)—or the talmudic com-
342 Chapter 5

ments such as those of Rabbi Shimon on talionic “eye for an eye” or Rav
Papa on the expedience of execution. Even if not directly translated in
any penal system of today as the Sharia still is, the penal image of man
and its suggestions for a penal policy related to Jewish religious heritage
is another potentially important research subject in comparative penal
religions. I return to this in chapter 8.
The same goes for Hinduism. As a complex multitraditional religion,
it provides a legacy that is in different variants shared by a significant
fraction of the global population and not just on the Indian subcontinent.
One of the most important Hindu sacred texts is undoubtedly the Bhaga-
vad-Gita. And it is itself only a document of a relatively limited scope in a
vast tradition: even a brief speculation on the huge corpus of Vedic and
Upanishadic texts, of dharmasastras such as Visnusmrti and Manusmrti,
about their numerous comments and possible impacts on the formal and
informal penal policies of India and other countries, is here and else-
where beyond me. As for the Gita, it has to do with punishment but in an
ambivalent way as does the whole Mahabharatha. 29 The dialogue be-
tween Krishna and an initially confused Arjuna on the eve of a great
battle offers a basic message about the transience of this world and, with
that in view, the calm execution of one’s duties, even if they involve
killing of other people, great warriors or fellow humans on the battle-
field. The offered distancing from the world and, paradoxically, engage-
ment in it, does not seem to offer particularly precise suggestions for the
punishment of offenders (see Prabhupāda 1991, 194–95/sec. 3/art. 28–29).
On the other hand, a reverse interpretation is possible. The performance
of duties may involve punishing offenders. Criminals should be pun-
ished, as the warrior Arjuna must engage in battle, even though he dis-
tanced himself spiritually from its outcome in the sense of grieving for
lost lives. It resembles somewhat the New Testament’s ambivalence of
“render unto Caesar” and may be seen as giving a carte blanche to any
penal policy deemed necessary to govern the matters of this world. Gan-
dhi can thus rely on ahimsa and avoid any kind of direct violence against
others, which suggests a mild penal policy, while Swami Prabhupāda,
the earlier referenced respected commentator of the Bhagavad-Gita, ac-
cepts the death penalty by the state, highlighting its karmic role. If pun-
ishment is inflicted in this life, then the karmic fee will not pursue the
perpetrator through reincarnation in the life that follows, making it easier
for him to reach the “higher spheres.” Theoretically, it is punishment as
expiation, giving a chance to the higher self, as in Hegel and the rest of
the Rousseau’s contractarian retributive progeny of the first chapter.
After all, as the religious doctrine has it, the soul cannot be hacked to
pieces even by the most elaborate capital punishment. Empirically,
whether the discourse of the Gita or Mahabharatha as a whole, as a
cultural resource, has anything to do with the ambivalent politics of
 Punishment and the Sacred 343

death penalty in India, I do not dare to speculate beyond the vague

affirmative feeling that it does.
China was already covered in the comparative chapter on a reason-
ably dense level for the standards of the book. We have seen the tendency
to simplistically rewrite the philosophical and quasi-religious tradition of
Confucianism as a typical discourse of the Left, with the ontology of good
individual who is led to misdeeds of violence and crime by bad company
and society. Mixing with African folkways, it became a mode of penal
political nationalist export, aimed at the foreign academic public. Aside
from informal social control (li), undoubtedly strong and associated with
this tradition, the history of penal policy was one of legalism (fa) and its
severe punishment, amputations and beheadings, while the ideology of
Maoism relied on rituals of indoctrination exemplified by the public
chastising of the “bureaucrats” and the penal labor of the Laogai system.
However, whether Confucianism is after all religion or not, I do not want
to be misinterpreted on this for putting some specific political accents in
the narrative on China; one should not doubt its influence beyond being
an ideological tool for penal promotion in the aftermath of the fall of the
wall when the clash of ideologies was replaced with often violent affir-
mation of cultures and civilizations. Although the penal outcome might
be far away from the text of the teaching, which has thus held a relatively
low profile in the comparative treatment of punishment in China, as the
comparative bit on Israel didn’t speak of Judaism, the indirect impor-
tance of Confucianism in the sense of available cultural resource and
societal practice cannot be overestimated, warranting at least a short par-
agraph to even the score with Taoism in the form of a brief penal sketch.
For those then who want to add a Confucian row to the table, the text
of The Analects is in favor of moral teaching but not generally against
punishment. It is not pro death penalty, but its mystical pithy apothegms
are no discourse of Beccaria anyway, and one cannot tell definitely. There
is a reference to prison but it is not normative (5:1). As the book has it,
gentlemen not plowing fields like peasants but studying virtue to get a
post in the imperial bureaucracy (15:32) place the thrust of their learning
at the root of things (1:2): the metaphor implies that moral education
precedes state policies. As was noted earlier, the body politic functions
well if filial piety is observed, if children obey their parents and their
elder siblings—if fathers are fathers, if sons are sons, then rulers are
rulers, as the normative tautology puts it (12:11). The familial moral du-
ties are sometimes at odds with public morality, and family members are
expected to cover for each other against the law (13:18). In any case, good
rulers are not defined by repression; after a long reign, they could abolish
cruelty (13:11). “You are running the government, so what is the point of
killing?” (12:19); as this rhetorical question of “Master Kong” suggests,
the death penalty is generally something to be considered cruel, although
it is not categorically rejected (see 11:17). The point is that imposing strict
344 Chapter 5

rules on people acting under various constraints, without instructing

them and giving them the chance to act better, is unjust (20:2). The ritual
(li) stands before punishment, and an altruistic humanness (ren) guiding
it is something important. Confucianism as a moral teaching in that sense
epitomizes the morality and ethical life (in the Hegelian sense of Sittlich-
keit) of Chinese civilization with all its influences on penal policy being its
sagacious guide or its stubborn problem. 30
Since the chapter dealt with Buddhism, I should finally say something
about the Land of the Rising Sun in the last step to the east and in this
chapter. Does “the text” as expounded apply to the penal practice? The
answer about the influence of religion on penal policy in Japan is compli-
cated and as such deserves a convoluted anecdote. In terms of Japanese
religious traditions and customs, Shintoism may to a greater extent be
interpreted as ancient folklore, not as a discourse with an explicit belief
system that could have any normative implications for modern penal
policy. Although references to the old criminal codification (Rico) appear,
rather than research this polytheistic and spiritualistic tradition in which
the good spirits (kami) and dangerous demons (oni), rituals, and altars
abound, in terms of punishment in modern Japan there are probably
more important foci of attention, including the potential impact of Bud-
dhist heritage and, more widely, postulated cultural differences, which
are subject to a number of misunderstandings. For example, a Croat,
together with his family, moved to Japan and subsequently killed his
Japanese wife and son. The Croatian media wrote about the death penal-
ty in Japan. One newspaper, with the correct display of procedure that
would culminate with the offender hanging in prison, concluded that it
was “important . . . to emphasize that the Japanese society as a whole is
very nonviolent” and that “the Japanese are quite shocked by crimes
resulting in death” (Slobodna Dalmacija 2010). The other daily dealing
with the same case claimed that “the Japanese look upon death different-
ly than the Westerners” and that “murder in Buddhism is a sin that is
severely punished,” also adding that the “modern . . . Japanese are very
pragmatic in terms of religion” and that “Japan is a secular state, but the
religious heritage of Shintoism and Buddhism is deeply rooted in the life
of each inhabitant of that archipelago” (Jerković 2010). 31
Undoubtedly, Japan is an archipelago and it is true that one cannot
principally ignore the religious heritage of Shintoism and Buddhism, and
that Japan is a secular state. However, to claim that the Japanese view
death differently and that it shocks them more than Westerners is either
banal or wrong. As we have seen, murder is a sin in Buddhism—al-
though without clear retributive implications for penal policy—but it is
similar in other religions. It is simply a conflation of (a misconception of
a) religion with government policy. Buddhism is actually in conflict with
the government’s policy of execution. For example, former Japanese Jus-
tice Minister Seiken Sugiura, a convinced adherent of one variant of Ma-
 Punishment and the Sacred 345

hayana Buddhism, in his mandate did not sign any warrant for execu-
tion; because of reasons of secular penal policy, he had to withdraw his
statement about the historical movement toward abolitionism, which was
in conflict with the government’s traditional policy of death penalty.
Contrary to many prejudices circulating in popular culture, Japan, in
terms of penal policy, judged by some convincing descriptions in the
academic literature, shares some important similarities to Western soci-
eties.
The case seemed to fit well into the turn-of-the-century narrative
about the penal turn in comparative penal policies. As the story goes, the
Japanese media offered sensationalist depictions of terrible crimes and
the public called for stricter penalties (genbatsuka); the movement for vic-
tims’ rights got significant media attention, with an corresponding in-
creased impact on the criminal justice system that is frequently accused
of bringing an insensitive bureaucratic approach to victims and for its
callousness. Despite the penalties becoming more severe and even
though the level of real violence measured by official statistics remained
low, “the Japanese public . . . exhibits low confidence in its safety, a high
fear of crime, and a punitive stance towards offenders” (Hamai and Ellis
2008, 33). Hamai and Ellis also indicated that the death toll in Japan is in
continuous decline, while newspapers write a lot more about the “per-
verse” (kyoaku) crimes, and more frequently the texts depict young killers
as cold-blooded monsters. When speaking about punishment, it was thus
less Buddhism than the mores of tight social control; and, although the
media are not politics or society, as academic texts are not necessarily a
source beyond doubt, it is more kyoaku of depraved crimes and genbatsuka
even in the liberal press (Miyazawa 2008, 62), against the tradition of
“benevolent paternalism” attributed to the Japanese justice system (Her-
ber 2014) and the heavenly compassion of Pure Land Buddhism.
These “oriental” examples further exemplify that the interpretation of
religious texts and doctrines as penal policy documents is itself a thank-
less task; additional problems appear as they mix with other traditions in
the influence of punishment, as with the assumption of their indirect
impact on different levels of penal policy and their possible conflict with
governmental penal policy. These additional examples by no means ex-
haust the extreme breadth of the potential impact of sacred texts on penal
policy. After all, even Ron Hubbard’s Scientology has views on violence
and punishment.

NOTES

1. Under the term “religious text,” I do not refer literally to a singular written
document but to the religious discursive message that can come in fragments or ap-
pear in multiple sources and is associated with the reasonably widely recognized
elementary content of a religion. For example, a verse from the Koran or a line from
346 Chapter 5

the gospels is text, but in the context of this chapter the same goes for a Zen story or
recognized Muhammad’s practice, while a reference to them in justification of penal
policies or specific political-historical usage of it means to associate this text with the
context and its interpretative permutation. The distinction between the text and con-
text is difficult to maintain in terms of final justification—the text is part of the context
and always implies a particular interpretation, as one can easily show already on the
cited examples, but I think that the distinction, although hard to articulate, is sustain-
able at this level of research, indicating that there is a minimal consensus about the
fundamental religious contents that are analyzed within this chapter. I simply tried to
read the basics as free from prejudice as possible, on which I further reflect later in this
chapter.
2. Unfortunately, I also eschew to venture into probing of the specific explanatory
perspectives associated with the development and robustness of these discourses hav-
ing to do with violence and punishment. For example, the evolutionary analyses of
statements such as “Love your neighbor” (Teehan 2010, 137) can similarly be applied
on “Punish the transgressor” or “His reform is (not) possible.” To see the comparative
differences in configurations and real effects of these discourses in that sense would be
a social science thrill.
3. For now, I’ll risk the legendary Brian Ferry’s vocal line from the 1980s Roxy
Music song that offers a bit of a nihilistic answer contrary to the corny feeling it
conveys: “I could feel at the time, there was no way of knowing.”
4. There are stories of devout she-monks against lecherous and superficial he-
monks, so this is not necessarily a programming of a gender-specific set of sins and
transgressions or a point on ontological misogyny or female capabilities for violence in
the style of Fincher’s rendition of Gillian Flynn’s Gone Girl.
5. The theoretical disclaimer is that the story is, in its initial frame, contractarian,
and that ardent Zen disciples are no average homines penales of the general population:
“Zen pupils take a vow that even if they are killed by their teacher, they intend to
learn Zen. Usually they cut a finger and seal their resolution with blood” (Reps and
Senzaki 1998, 84). However, if we take a small sangha as a metaphor for political
community, the cited reasoning resembles very much the justifications of the death
penalty offered by classic European contractarians from Rousseau onward, as present-
ed in the first chapter. The acceptance of capital punishment means that citizens also
seal their vow to enter politics with blood—the sole difference is that they do not cut
their fingers.
6. In all three instances, I quote from John H. C. Wu’s translation (Wu 1989), the
first one of the eight listed for every one of the eighty-one chapters appearing in the
1990s scholarly self-help edition that compiles them (Bolsen 1996). Sharpness of weap-
ons, the advance of applied technology, is metaphorically applicable to firearms, that
is, to state the obvious, it is not to be taken literally for knives and axes only. The other
translations have “berighted,” “troubled,” “muddled,” “chaos,” and so on in the place
of “confusion.”
7. Quotations from the Koran include the number of the surah and the number of
ayah in the chapter, separated by semicolon, similarly to the style applied to Bible
quotes. The transliteration of Arabic does not conform to a contemporary standard, for
example, as employed in the International Journal for Middle Eastern Studies. It is some-
thing more classic, very probably not at all tidy, and consequently involving a mixture
of a Slavic ear, eclecticism, and improvisation with no bad intentions. Being no hafiz,
moreover lacking any tafsir training and elementary knowledge of the Arabic, and
probably qualifying as one of “those Western infidels, whose reading background is
mostly in fiction” (Irwin 2003), I feel I should spell out several disclaimers concerning
elementary philological precautions, in order to eschew misunderstanding. The Ko-
ranic Urtext is no scriptio plena, it is a combination of poetry and prose (saj), open for
different vocalizations and interpretations (see Karić 1990, 25, 96, 237, 110). On top of
this, all the usual problems of translation and hermeneutics of the old complex text are
added. I thus offer an interpretation not an ultimate truth about the text. As my taste
 Punishment and the Sacred 347

for the archaic made me use the King James version, I decided to stick with the N. J.
Dawood’s translation, labeled “the latest in the long line of European translations
which presents a distorted interpretation of the Qu’ran” (Sardar and Malik, 2002, 47),
as well as with the older anglicized transliteration (“the Koran” instead of today more
often preferred “the Qu’ran”) in which I fail to see any orientalist disrespect beyond
older convention of language. Although there is some merit in the objections to Da-
wood’s translation beyond scholarly hairsplitting and contemporary political agendas
(see Abdel-Haleem 2010, xxii–xxiii; and Sardar 2008, on Tarif Khalidi’s translation—
The Qu’ran 2008) it seems to me that the problems of interpretation, as far as the issues
discussed here go, refer more to the lack of contextual knowledge and the problem of
an incompetent reader than to a problem of incompetent or malicious translator. That
said, comparing Dawood’s translation with Abdel Haleem’s more contextual and ex-
planatory rendition as well as with Besim Korkut’s classical translation to Bosnian, I
have found no significant distortion for the purposes of this treatise.
8. Although the Holy Book prescribes obedience to prophetic judgment and deci-
sions (see 4:65, 24:63, 59:7), the status of the ahadith is not beyond dispute, some seeing
them as doing “to Islam what the First Council of Nicaea did to Christianity” (Batalvi
2009). More systematically on the possible relationships between the Koran and the
sunna, see Kusha and Ammar (2014).
9. This elementary overview mostly ignores a few important distinctions, which
would be unavoidable if the chapter primarily dealt with the penal policy in Islam,
which would come down not only to doctrinal differences but to practice of how
Islamic penal law works “on the ground” (Peters 2005, 3). With its textual orientation,
it might be accused of a Sunni bias, paying less respect for ijtihad as less traditionally
constrained reasoning that has more to do with Shia Islam and the interpretive author-
ity of mujtahids until the Mahdi comes. And, second, within the Sunni world of ortho-
dox madahib fixed already in medieval times, operating with the concept of analogy
(qiyas) to find solutions for the new developments, the differences between the four
schools—Hanafi, Maliki, Shafii, and Hanbali—as well as the specifics of the Shiite
Jafari school, are not discussed.
10. Contrary to my cherry-picking of the ayat, paved with good intentions, the
reader should note that a genre exists that posits Koranic symmetries and even circles,
building the interpretation of the text upon the structure of the whole (see Farrin
2014), against the curmudgeon Carlyle’s nineteenth-century lack of enthusiasm for
what he saw as an exercise in tedious iteration.
11. However, with this resonating Koranic threat of Judgment Day punishment, a
duty of permanent Manichaeistic jihad is sometimes derived (a thing that appealed
even to Hitler commenting on the Battle of Poitiers with the usual Nietzschean scorn
against defeatist Christianity that does not fit the German Volk as he saw it): “The
faithful and the unbelieving are fated to be separate for ever and to fight each other.
The War of Religion is a sacred duty and thus, though in a less comprehensive form,
the double crowd of the Last Judgment is prefigured in every earthly battle” (Canetti
1981, 141–42). Canetti’s theoretical elaboration was recently brought to extreme in
practice by the Islamic State, seeing Islam as “the religion of the sword” and pacifism
as such as shirk (see Dabiq no. 7, 20–24, and no. 8, 3–6).
12. In the context of one of the rarer instances of God’s mercy in the Judeo-Christian
tradition, from the Book of Jonah discussed a bit later, it is worth mentioning that the
Koran has a surah named after Jonah/Yunis who acts as a figure in saving those who
change their ways, as stated in the godly majestic plural: “When they believed, We
spared them the penalty of disgrace in this life and suffered them to take their ease a
while” (10:98). Jonah is also mentioned in various places in the lineage of prophets and
his story is briefly recounted as the one saved by God’s grace. See 37:139–48; 68:48–50.
His other name is Dhul-Nun, a whale master “crying in darkness” (21:87–88), and the
same title is carried by a legendary Islamic Gnostic and Sufi mystic Dhul-Nun al-Misri,
the Egyptian whale master.
348 Chapter 5

13. It sounds categorical and general but does not close the possibility of saving
one’s skin through conversion and might furthermore be interpretively constrained as
a historical narrative of a Medinan surah, referring to the concrete treaty breakers (see
Abdel-Haleem 2010, 116). On the ambivalent status of Jews and Christians, who fare
better as the “People of the Book” but seem to lack in quality and status compared to
the observing Muslims, see 2:62, 3:19,65–72, 5:51,65–69,72, 9:29–30.
14. Beyond the stories about the apocryphal missing verse providing for an extra
year of banishment for a strange species of virgin adulteress (al-bikr) and lashes plus
rocks for the unlucky nonvirgins (al-thayb), stoning (rajm) is not in the Koran, but it has
a basis in the ahadith (see Peters 2005, 60) and is sometimes implemented today in both
meanings of the word—of introduction to the legislation and the actual practices (see
Kusha and Ammar 2014). The other hudud with fixed punishments are theft (sariqa),
with the famous hand-cutting as punishment (5:38–39), intoxication with alcohol
(shurb al-khamr), which is together with gambling and divination a work of sheitan (see
5:90–92), but note that it goes without a precise punishment in the Koran itself; proced-
urally demanding calumny (qadhf)—including both number of witnesses and moral
pressures on the gossipy community and the accusers having to invoke Allah if wit-
nesses are lacking—punished by eighty blows (jalada) (see 24:1–21), that is, five times
less than Truffaut’s French New Wave classic (while the mentioned fornication has a
factor four to it). Finally, there is apostasy (ridda), although, judging by the text, its
status is ambiguous since “grievous punishment” might mean Allah more oblique
working through destiny, not an authorization of earthly death penalty by the author-
ities (see 3:90, 9:66, 16:106). As in the case of zina, this is complicated by the ahadith and
the practices of the maddahib that were quite stern and precise, sometimes providing
for waiting periods before the execution.
15. See also Kusha and Ammar (2014) who discuss implementation of qisas in the
cases of murder (qisas-e nafs) and bodily injuries (qisas-e ‘uzw) and diyya as optional
compensation in Iran. As for the ambivalences of the Western penal doctrines and
practices, consider the O. J. Simpson case, where the suspect was acquitted for murder
in a criminal trial but lost the case for “wrongful death” in a civil court, awarding the
families with more than $30 million in damages.
16. The discourse of the Koran can be divorced from various extremist practices and
as such has nothing to do with, for example, female circumcision or stoning. As for the
ticklish gender relations codified by the thicker layers of law and culture, there are less
enthusiastic accounts ranging from Hirsi Ali’s call to crush the enemy of liberal de-
mocracy to Houellebecq’s Breivik-light narrative, ironically calling for submission,
which is briefly tackled in the next chapter.
17. The answer is keen to specify that this is the question of implementation: “I
would like to clarify here that this issue pertains not to the Shari’ah but to the imple-
mentation of the directives of the Shari’ah” (Understanding Islam 1999). Thus, according
to the text, hudud is absolutely mandatory but ideally only applies in certain circum-
stances of the more or less just societies that, paradoxically, are nonexistent, and if they
were existent then punishment would not be needed. It looks a bit like one of the
Radio Yerevan jokes, sometimes evoked by Žižek. Listener’s question: Can the Mosk-
vitch enter the full curve at 70 mph? (He might have said Volga; I do not remember the
exact model, but it was a car with crappy reputation, in essence, for the purposes of
the joke here.) Radio Yerevan’s answer: In principle it can, but only once.
18. All the Koranic references to prison (nine of them), are located in the twelfth
surah (Yusuf/Joseph) and are not of normative character in terms of penal policy. The
first permanent prison among Muslims was established in Mecca during the reign of
the second Caliph Umar, the same one who suspended the Sharia penalty of cutting of
the hand, because of the exceptional circumstances of scarcity and hunger, which is
used to justify adjustments of punishment to context as, in fact, old school orthodoxy
(see Ammar 2002).
19. I quote from the Bible in the usual way, citing the abbreviated name of the book,
then the chapter and the verse number or their range after the colon. Quotes are from
 Punishment and the Sacred 349

the King James Version that probably sounds more pompous and archaic to the ear of
the average native speaker than to mine. The inspiration for this licentia poetica carries
no hidden doctrinal message: I was reading Burgess’s conservative venerations of the
classic, praising the quality of the language today lost. The usual abbreviations for the
books apply: “Gen.” for Genesis, “Exo.” for Exodus, “Lev.” for the Leviticus, or “2
Tim.” for second Paul’s epistle to Timothy, and so on. As for the struggling not only
with stylistic and semantic but political issues of the language of the Bible, having to
do, among other things, with the new gender standards for academic language, I
found a piece dealing with the subject matter of this section furthermore equipped
with the foreword whose subtle irony is in fact hilarious and demands no further
explanation. I believe I should mention it since it in a way applies to this treatise more
widely: “And while I have attempted to reduce the number of masculine possessive
pronouns used for God, it has been beyond my stylistic ability to eliminate them
entirely” (Marshall 2001, xv).
20. The discourse of the Bible—a product of a number of traditions, authors, trans-
mitters, and interpreters—is not , of course, in this respect unified. Instead of God’s
punishment of wrongs from the Pentateuch, the book of Ecclesiastes speaks of the
vanity and hopelessness of this world in a passive pessimistic tone. It has almost
Buddhist overtones: “Vanity of vanities, saith the preacher; all is vanity” (Ecc. 12:8).
Litanies of this wise man offer equally pessimistic views on the violence in the world,
which, it seems, is punished neither by the Lord nor men: “So I returned, and consid-
ered all the oppressions that are done under the sun: and behold the tears of such as
were oppressed, and they had no comforter; and on the side of their oppressors there
was power; but they had no comforter” (Ecc. 4:1).
21. The ambivalence in both these genres and especially in their mutual relation is
not lacking (see, e.g., Gen. 4:15, Rom. 12:19).
22. See also Deut. 19:21.
23. See also I Peter 2:13–14 where evildoers are punished by the kings.
24. Citing his earlier appeals to consensus to end the death penalty, the statement
was issued in a homily at the papal mass in the Trans World Dome in St. Louis in 1999.
In 2000, serving a mass in prison in Rome, the position of the pope became even more
categorical: “May the death penalty, an unworthy punishment still used in some coun-
tries, be abolished throughout the world” (DPIC n.d.).
25. To give some taste of this kind of quantitative interpretive pedantry: “The Ara-
bic word translated as ‘cut’ in 5:38 is ‘iqtaa’ and occurs 14 other times in the same verb
form (QaTaA) in The Quran, and with the exception of 59:5 and possibly 69:46 all
other occurrences mean the non-physical or metaphorical action of ‘cutting off rela-
tionship’ or ‘ending’ [2:27, 3:127, 6:45, 7:72, 8:7, 9:121, 13:25, 15:66, 22:15, 27:32, 29:29,
56:33]” (Misconceptions about Islam n.d.).
26. The word in the Koran associated with the substance abuse is khamr, appearing
six times and etymologically having to do with shrouding, concealment, and befog-
ging, which of course can be and was associated with drugs (Book of Signs 2009) but
was traditionally associated with liquor such as wine (Islamic Dictionary 2011).
27. The approach was introduced and elaborated by Ann Swidler, who claimed that
“Culture influences action not by providing the ultimate values toward which action
is oriented, but by shaping a repertoire or ‘tool kit’ of habits, skills and styles from
which people construct ‘strategies of action’” (Swidler 1986, 273).
28. Foreshadowing the concluding chapter, a special understanding of evil might be
more important in understanding punishment from a religious point of view; more
categorically put: “views of religious evil and levels of religious practice—rather than
scriptural literalism, fundamentalism, or images of God—are the most important as-
pects of religion for predicting punitiveness” (Baker and Booth 2016, 165).
29. Briefly as possible, the Mahabharatha, being an itihasa, a mammoth historical
account combining mythical epic with theological expounding—upaparvan of Bhaga-
vadgita being a famous bit of it—combines suggestions of broadly applied nonvio-
lence (695/13.114) with the “punishing the wicked according to dharma” to protect the
350 Chapter 5

people (18/1.58). Although there are hints of de facto relativism, not crossing the
Nietzschean line—”in this world whatever a powerful man regards as dharma is said
by others to be dharma, even if it falls within the limits of adharma” (149/2.62)—the
paradox is better solved by acknowledging the strata-specific sets of rules. There is
dharma working for all but some dharmas are strata-specific, and the one obliging the
kings would be less Brahmanic than related to the Kshatriyas’s courage, honor, and
battles (e.g., 555/9.59, 600/12.22) necessarily involving hinsa or violence. “The king’s
highest dharma is to administer punishment” (609/12.70), creating an age and not
depending on it, not contextual but determining the context, even if this position is
uncomfortable for most of the Buddhists. Kali Yuga, or an age of vice, is an age
without punishment in this perspective, although the call for punishment is itself part
of wider contextual policy package beyond strictness advocated per se as a panacea.
(The references in this note are to the Mahabharatha, 2009: page/book.section.)
30. For the citations, see Confucius (2000), following the Harvard-Yenching ar-
rangement of chapters. The first number is the number of the book, the second number
of chapter, that is, the aphoristic utterance. As for the comparison between Taoism and
Confucianism, a short observation offered from an Italian prison will suffice. As
Gramsci observed casually in his Prison Notebooks, a Confucian from the perspective of
a Taoist is like a merchant from the perspective of a sage: someone who, with antlike
movements, tries to capture the path singularly grasped by the sage (Gramsci 1977,
343). That Taoism has more to do with mystical insight while Confucianism is more
pragmatically disposed is probably reflected in the fundamental penal designs deriv-
able from the central texts of these traditions.
31. The perpetrator was in the end sentenced to twelve years of imprisonment.
 SIX
Punishment and Fiction
Images of Violence in Literature and Film

One of the ways to define literature is to say that it is a genre of writing

that is not instrumental. Its purpose, if that word can be used at all, is
aesthetic at best. It is found in the realm of uninterested appeal, of sub-
lime pleasing of the senses. In a short history of English literature that he
initially wrote as a colonial civil servant, the author of Clockwork Orange,
an intriguing piece on violence and punishment to which we return later
in this chapter, noticed that “a writer whose main concern is to impart
information is not producing literature” (Burgess 1974, 129).
Even John Maxwell Coetzee, often introduced as the most decorated
living author of the English language (winning two Bookers and a Nobel
Prize), in a way placed literature outside of history and politics. Although
himself the author of the engaged works on political violence and pun-
ishment, his point was to underline the importance of artistic freedom,
against the then actual fatwas and the imposed political responsibilities
of the artists (see Harber 2013) as a renowned historical object of oppres-
sion and punishment. In a way, Coetzee was defending Rushdie against
himself. There is a right to choose to close oneself inside the whale, even
if it means to be a “quietist” or a “happy pornographer” instead of a
political challenger of book-burning fundamentalisms, risking to become
a target of various vigilante agents of punishment.
However, examples of the latter—punishment of an artist returning in
the form of art about punishment, or violence against an artist returning
as art about violence—are certainly not lacking in an unpleasant paradox
(a variation on the theme suggested by Kiš) that suffering and hardships
of individual artistic destinies give richness and force to the field of pun-
ishment and fiction, as the carnage and brutalities in style of the Borgias
351
352 Chapter 6

went hand in hand with the historical artistry of the Italian Renaissance
of figures such as da Vinci and Michelangelo. As Harry Lime, a Postwar
crook played by Orson Welles, acutely observes in Carol Reed’s The Third
Man: Switzerland’s democracy and peace had produced the cuckoo clock
(and H. R. Giger’s disturbing art one might add among other things). Be
that as it may, I first single out a few illustrative examples in order to
come to the point about the relationship of fiction, politics, and punish-
ment that legitimizes it as an object of discursive probing and political
analysis. After all, Rushdie’s metaphors were accurate enough at least in
one thing in his provocative essay: he was right that “we are radioactive
with history and politics” (Rushdie 1984).

FICTION AND EXPERIENCE OF PAIN: FROM PILLORY TO GULAG

Daniel Defoe was put in the pillory in the summer of 1703. He spent a
few days there for writing The Shortest Way with the Dissenters, a satire of
what today seems surreal—an Anglican zealotism. In that piece, Defoe
“argued that the best way of dealing with the dissenters was to banish
them abroad and send their preachers to the hangman” (Cavendish
2003). An ironical tract on punishment earned real punishment for the
now classic and venerated author. As Ezra Pound, titano della poesia, was
caged in Pisa by the American military a few centuries later, not least for
admiring Mussolini and comparing Hitler to Joan of Arc, Defoe was im-
prisoned, fined, and pilloried for his writing. Being a witty artist, Defoe
did not manage to keep his mouth shut concerning his punishment, and
the world in turn got richer for one more satirical autobiography of pun-
ishment and commentary of the penal policy named A Hymn to the Pillo-
ry, a poem bringing into question that and other “engines of the law,”
claiming that penal policy produces crime instead of preventing “future
mischiefs”: “If a Poor Author has Embrac’d thy Wood, Only because he
was not understood.”
We then have a decorated Red Army captain gone Russian Orthodox,
in his old days affirming Putin’s reign as a return to the tradition. Posthu-
mously, he makes it to the pop culture he despised, providing antitotali-
tarian revolutionary quotes on how power is held as long as not every-
thing is taken from the oppressed, as declared in Cloud Atlas. Alexander
Solzhenitsyn, a protagonist of our second example, is a dissident whose
experience in the Siberian penal camp system of the Soviet Union almost
two and a half centuries after Defoe, made him write short classics such
as One Day in the Life of Ivan Denisovich. The book described the harsh life
of punishment in the cold labor camps, finding its kairos as political peda-
gogy in the Khrushchev era dealing with the Stalinist past. Or the more
grandiose, famous, and directly autobiographical The Gulag Archipelago,
referring in the title to the acronym of the Soviet camps’ administration
 Punishment and Fiction 353

and both real and metaphorical islands of seclusion and punishment,

which was too much for the Soviet regime to swallow. A significant part
of Solzhenitsyn’s life was spent in punishment and exile, to the point that
he has “come almost to love that monstrous world” (Solzhenitsyn 1973,
x). A voluminous documentary analysis of his experience was paired
with reflection on evil that discarded, on the quite impressive empirical
grounds of the twentieth century, the individual evildoers as naïve fig-
ures. Solzhenitsyn thus set the terrain for the issues tackled both in the
introductory and concluding chapters that discuss evil in terms of clas-
sifications and typologies. The ideology is the culprit that helps the evil-
doer to believe he is good, “the social theory which helps to make his acts
seem good instead of bad in his own and others’ eyes” (Solzhenitsyn
1973, 174). Unlike Jago’s cited self-awareness of a person so vile that he
will drink his victim’s sufferings until drunk with them—Jago, after all,
speaks in prose unlike Othello, who speaks in poetry, as Orson Welles
used to say, which against some intuitions enables monumental expres-
sions of evil—the ideological evil is the one that is, according to Solzhe-
nitsyn, seen as the good by those practicing it, making classical demons
somewhat obsolete and largely unconvincing:
We would prefer to say that such people cannot exist, that there aren’t
any. It is permissible to portray evildoers in a story for children, so as to
keep the picture simple. But when the great world literature of the
past—Shakespeare, Schiller, Dickens—inflates and inflates images of
evildoers of the blackest shades, it seems somewhat farcical and clumsy
to our contemporary perception. The trouble lies in the way these clas-
sic evildoers are pictured. They recognize themselves as evildoers, and
they know their souls are black. (Solzhenitsyn 1973, 173)
The examples are only two extremes in a wider field. Cases such as
these are not lacking, be it Brassilach, also a character appearing in Lit-
tell’s Uranian Nazi saga, to whom de Gaulle was less merciful than to
Sartre, or the luckier Rabatet, who liked the Stendhal quote on the value
of the death penalty, which is only thing that one does not buy (the dead
cat’s head from the Zen story excluded). This strangely dignifying aspect
of the death penalty, worthy of a cell wall inscription, might have some-
thing to do with the probably most famous case of punishment in litera-
ture that also had to do with actual punishment. Frequenting liberal uto-
pianism circle, discussing Fourier whom he later mocked in his works,
Dostoyevsky was sentenced to death and then, by the mercy of the tsar,
commuted at the last moment at the scaffold. He was sent to a Siberian
labor camp, similarly to Solzhenitsyn. As a consequence, not only did he
rediscover Orthodoxy and introduce the motif of the oblivion of God, as
Solzhenitsyn did a century later, but he also wrote classical pieces on
punishment such as The Notes from a Dead House, offering a classical de-
piction of mortification by a total institution, and later the probably most
354 Chapter 6

famous novel grappling with the issues of violence, subject, and punish-
ment; after the killing of a loan shark granny and her half-sister as a
collateral victim, and the subsequent cat-and-mouse psychological game
with the perceptive police detective, Crime and Punishment has Raskolny-
kov ending up in Siberia to serve his eight-year sentence, bringing him
moral redemption. Crime and punishment, as we shall see, appears as a
scenario of individual catharsis of a fallen man dealing with the problems
of his nature: “I don’t believe in man” as Céline—who described his best-
known novel with a simple triptych “Crime, delirium, Dostoevskyism”
(Céline 2014)—wrote in the 1930s, bluntly expressing similar anthropo-
logical pessimism.
But what connects a representative of neoclassicism writing a Pindaric
ode, a realist novelist interested in human psychology, and a meticulous
documentarist of the Kolyma and the wider Gulag “archipelago”—a po-
litically charged term that was used to describe American prison system,
as the “Gulag Western style” (Christie 1994)? The answer lies exactly in
the Solzhenitsyn’s opus magnum, which was subtitled as “An Experiment
in Literary Investigation.” The mentioned works and many others, in
their own style and in the genres with often fuzzy boundaries, have
something to say on humans, society, violence, and punishment—some-
thing that is strong and convincing, coming from a combination of artistic
imagination, the power of words, and authentic experience, which, in
some cases, can be substituted with the sheer power of imagination since
the product is judged by its quality or effect, not by its origins or experi-
ential credentials of the author. Victims are many, writers are few, and
some can imagine better than others can live. The statement still has to be
qualified for the purposes of this chapter, which is not focused only on
books.
Even if the author in the narrower sense of “the writer of fiction” is,
indeed, a concept quite wider than writer, the number of authors who
produced something relevant for the interest of this treatise is still small
compared to the numbers of victims, as a peanut compared not just to a
big melon but, let’s say, the globe. The history of violence, punishment,
and suffering is the stream of lives of innumerable victims and perpetra-
tors who did not have the chance or the talent to become authors. How-
ever, speaking in absolute terms instead of relative ones, the number of
authors who in various mediums said something relevant about violence
and punishment is vast beyond mastering. I try to navigate through that
challenging material of good fiction on violence and punishment in this
chapter, aware that I omit so many things—those that I forgot, those that
I had to omit due to a lack of space, or more probably those that I was
unfortunately not even aware that they existed—despite a pretty big re-
view of imaginative and rich discourses on violence and punishment in
two media, mostly in the two specific genres: novels representing litera-
ture, and films in the name of the visual media.
 Punishment and Fiction 355

The structure is the following. I start with some short points made on
the basis of three films that, each in its own way, exhibit the fluidity of the
boundaries between fact and fiction when violence and punishment are
at stake. I develop it into a more general methodological reflection on
how to understand and use the analyzed materials. Engaging this issue
cannot go further than briefly laying out the old problem of truth and
fiction, which would on itself merit a special treatise much longer than
this review, but these sections can offer some elementary clarifications
and insights. Subsequently I incurably muse and experience awe once
more on the vastness of the field and briefly explain the interpretive
categories to infuse some order into the field, and then develop the bulk
of the analysis. In the analysis of the material, I shift from novels to films
in order to depict similar discursive worlds and opposing world pictures
in another popular medium, and then drift into more complex and fuzzy
contextual narratives that escape the proposed interpretive categories,
serving to show their limits and to “deconstruct” them. However, I can-
not escape the usual table summary in the end, forcing the material into
the proposed political straitjacket of Left and Right. The closing cases—a
recent piece from my country and an absolute English classic—serve to
illustrate how an analysis of fiction can be coupled with points from the
chapters on history and power and to shift the discourse toward the
coordinates of the last chapter. 1

TRUTH, FICTION, AND . . . DOCUFICTION: REAL FUNCTIONS OF

FICTIONAL NARRATIVES ON VIOLENCE AND PUNISHMENT

Sometimes genres get mixed up, blend, pour one into other, and this
mélange escapes the clear, static categories we have at our disposal to
classify things, as in Flaherty’s controversial 1930s “docufiction” Men of
Aran, where a romantic narrative of man versus nature and its elements
has the natives hunting basking sharks from their simple boats for their
liver oil. The film turns folklore into a mythical depiction that is neither
true, because it is largely enacted and includes anthropological inaccura-
cies and invented traditions, nor is it false, because it stylizes the rem-
nants of more or less authentic elements of the tradition of hard life on
barren islands that got a bit more populated as a consequence of the exile
of Irish Catholics before the armies of Cromwell in the seventeenth centu-
ry.
A recent prime example of this difficulty in separating fact and fiction
in the field of violence and punishment is Joshua Oppenheimer’s
awarded 2012 documentary The Act of Killing, coproduced by Werner
Herzog. On first viewing, it is a surreal piece that is instinctively placed
somewhere between fake and bizarre. It deals with the infamous mid-
1960s events in Indonesia marked by massive killing of the Communist
356 Chapter 6

Party members and other collateral victims of the purges during the tu-
multuous transition from Sukarno’s reign to Suharto’s US-supported
“New Order.” Private mixed with the political, paramilitary with the
military, in the implementation of political violence. Indonesian commu-
nists as primary marks were targeted together with minorities, and those
on the margins of the events were simply a target because of the private
feuds that those endowed with political authorization to violence had the
opportunity to exorcise. The official political ideology blended with the
more general haidouk worldview, romanticizing the “premen”—a self-
understanding of the film’s violent protagonists—the free and strong lo-
cals who defied colonial rulers and bureaucracies, which is a concept
easily understood from the perspective of an author abiding at the con-
tested margins of the Balkans (not that far from the Esplanade Hotel in
Zagreb, which Krleža took as an imagined boundary spot of the turbulent
political peninsula). The outcome: hundreds of thousands killed and im-
prisoned in a massive and quick “mini” democide and the political exe-
cutioners still alive and well, in positions of formal and informal power.
The Act of Killing has the number of victims estimated from one to
three million. Although the precise historical statistics are immensely val-
uable and the difference would be important even if a single life, more or
less, would be lost—indeed, it would be the difference of the whole
world gained or lost—the huge variations in estimate and the exact num-
ber are here not important, and even for the film as such: if the real
number of victims was smaller than the smallest estimate, it is still mas-
sive, enormous. It constitutes an event comparable to the Armenian gen-
ocide in Turkey, an event that gets included and excluded from the text-
books, still arousing political controversies, and there is no national con-
sensus on this large historical trauma. This is the background of the film,
which researches one aspect of the democide, not the work of the military
machine but paramilitary aspect of the events—the common criminals
and thugs used by political power and mandated to commit atrocities, to
later rise to power in the establishment. The way that it does its research
is the reason the film is interesting: the filmmakers do not interview the
experts or the victims and thus take the perspective of the victims, which
is the more usual approach, but take the perspective of the perpetrators
in a specific way. Anwar Congo and others, petty criminals who worked
in the death squads, are also movie aficionados. They speak and enact
their deeds with pride again, in the stylistic form of their favorite Holly-
wood genres such as the western, the musical, or noir. The film thus
works as some kind of political therapy to the point that one can speak of
a catharsis through fiction, even if it is very ambiguous in the end. The
scene that illustrates this is the one of Anwar’s vomiting on the place
where he allegedly performed a mass strangling with a piece of wire. His
convulsions seem inauthentic and one is not sure if the author wants to
show this as fake bad acting of remorse or, perhaps, Anwar acts that he is
 Punishment and Fiction 357

acting, satirizing the act of killing. In simpler metaphors, one can see the
theatrical spasms, but there is no vomit. As Oppenheimer puts it in an
interview, every dramatization that the perpetrators perform is “even
more outrageous allegory for their impunity” (DP/30 2013). But his point
goes much further than the exposing of almost surreally grotesque peo-
ple who are, as are other ordinary men we discuss in chapter 8, “nice
welcoming people, not psychopaths,” as Oppenheimer says, even if they
strike the viewer as bizarre clowns. 2 Like Benjamin, Oppenheimer wants
to point out that many societies are based on hidden violence and that
ordinary lives are marked by traumas, victims, and suffering somewhere
in the past. More generally, in the global system of interdependence, it is
structural violence he wants to highlight: the buying of cheap merchan-
dise and using a cheap labor force can continue, among other things,
because long ago communists were ruthlessly exterminated. The network
of participants giving passive legitimacy to various acts of killing can go
wide. Sometimes it seems it is almost the world itself that goes on, silent
and guilty.
A here-relevant semantic-ethical discussion unfolds briefly in The Act
of Killing involving one of the protagonists driving a car. “War crimes are
defined by the winners,” the killer asserts. “I’m a winner. So I can make
my own definition.” Simple, creepy, but with a strong ring of truth, at
least in the ambiguous historical matters where official histories often
function as myths that descend to the “everyday”—to the mind-sets of
banal nationalism and other ideological projects of power. Fiction is thus
used to see politics itself as a genre of manipulative fiction where the
same thing can be celebrated or condemned, depending on particular
interests and identities, instead of a universal morality, even if—or espe-
cially because—it is a mass butchering of political enemies. An influential
documentary on political violence (and impunity) uses fiction with real-
world effects to expose real political fictions, ideologies, and myths,
myths by virtue of the fact that the events can be recoded to serve other
interests. It manages to show how boundaries between political fact and
fiction are not simple. “Facts per se do not constitute truth.” Those are the
words by which Herzog expresses his deep belief talking about the movie
that he immediately recognized as immensely important (Vice 2013).

MEDIA, FILM, AND VIOLENCE: FICTIONAL GOVERNMENTALITY

OF KILLERS AND VIOLENT FABRICATIONS OF FICTION

Fiction also problematizes the role of the media in relation to violence,

itself being a part of the game of (representation of) violence. For exam-
ple, Stone’s Natural Born Killers was borrowed fifty times in a video rental
store by Srđan Mlađan, one of the famous serial killers in recent Croatian
history, who as a teenager killed a bypassing girl in a gratuitous act of
358 Chapter 6

violence and then later killed a policeman in the course of a hostage crisis
when he was on leave from the youth penitentiary due to the then more
liberal implementation of the regime. Although we return to Mlađan in
the last chapter, Natural Born Killers, filmed by Stone, scripted and dis-
avowed by Tarantino—whose consistent aesthetics of violence, including
his latest film about the driving hatreds of US history and involving some
false hangmen, I reluctantly have to leave aside here—is the type of film
usually accused of inducing violence. Mickey and Mallory, uncompro-
mising heroes in a film labeled “volcanically violent” by Rolling Stone,
idolized by teenagers, are of course characters in a film that is more than
subtly ironic, campy, and so on (many discursive labels outside of a
pamphlet advocating random killing apply), but nonetheless, as in
Mlađan’s case, the two can provide the inspiration for action to some lost
souls and thus give fuel for the media (and video games and so on) and
violence research, and incite investigations into the channels of transmis-
sion of fictional violence to the real world.
Natural Born Killers is an example of how media can induce violence,
but a second issue, of how they produce it, is much more intriguing and
unsettling to me. Consider Nightcrawler, a 2014 film with brilliantly
creepy Jake Gyllenhaal in the main role. From a petty thief, he becomes a
devilishly able and daring crime-scene cameraman selling his footage to
the media channels searching for the real grisly scenes in the context of a
public craze for violence. As the crime rates falls in San Fernando and the
economic value of his on-spot shots of car crashes and murder scenes
rises, he becomes much more than a rare animal hunter, as one of the
metaphors has it. According to the trailer, the film shows the blurring of
lines between observing and participation: he observes when he should
participate, filming the suffering instead of helping, and participates
when he should observe, inducing crime and violence just to film it and
sell it. Completely amoral and apparently devoid of any emotions, he
observes the crime scenes voyeuristically, meddling with the corpses to
get better shots, and finally he sets up the killing of his partner in the
culminating scene. It is at the same time a statement on corporate culture,
its amoral buying and selling of assets, and an ontology of Louis Bloom
as the ultimate creep working against the illusive peace of almost meta-
physical anthropology, assuring us of such by the people showing what
we expect to be the usual emotions for the expected situations. Media
seek attention by being gruesome, following the news media marketing
adage “If it bleeds, it leads,” and there are people who are more than
willing to deliver the goods.
 Punishment and Fiction 359

BEWARE OF THE MAGICIANS: A POPPERIAN DISCLAIMER

How far, how deep, and with what aggregate consequences on the larger
population do the fictional discourses of less-ordinary subjects really
work? It is a sociological question I am not at all addressing here. The
point is that, in principle, fiction can produce violence, serving as an
inspiring paradigm at least for some subjects. It can spill over to reality or
it can imbibe it for the sake of representation in another medium. Should
we then throw reality overboard, in some kind of drunken Baudrillard-
like orgy or paradox concerning simulacra and reality? It would not be a
very enlightening way out. Although virtual and real get blurred in a
sense, I am not at all arguing for a facile chaotic morass. The idea is, after
all, to keep the things analytically distinct, acknowledging ways in which
they—fiction and fact—influence and shape one another, sometimes mix-
ing, spilling one into the other, and producing murky indistinctive zones.
In other words, fiction is also a type of fact, mixing together with other
facts of a different type.
Applied to our specific area of research, as the authors of the useful,
realistic, and mundane textbook combining public policy with criminal
justice observe: stories, games, films, videos, various genres of web mate-
rial, and so on are witness to the fact that crime has become “a part of
popular culture”; they reach the conclusion that “the demarcation line
between reality and fiction, related to crime, has become increasingly
obfuscated” (Marion and Oliver 2011, 15). Although their point is that
perception is distinct from “crime reality,” as shown, for example, in the
amusing discrepancy between the popular perception of the rise of crime
and its decline in the federal statistics in the United States, the point here
is more far reaching than the ablation of the virtual from the real world as
in interactive fantasies and emulations of life engaged in multiplayer
mode on the web (with the real-life substrate in the eye-bagged computer
potatoes, if not plugged-in human batteries as in the Wachowskis’ The
Matrix). It is not even the Thomas theorem that pushed to the extreme the
tenets of sociological symbolic interactionism that sees the definition of
the situation as very important for social interaction, foreshadowing
works such as Goffman’s Frame Analysis.
This semantic aspect of societal interaction evolved into famous law-
like form, claiming that “If men define situations as real, they are real in
their consequences.” That no doubt works in the area of violence and
punishment, as in banking system crises that get worse because of the
panic (i.e., however marginal in output, media-fiction-induced fear of
crime, changing routines, and producing new types of crimes, setting the
scene for new marks and perpetrators), but the old social science insights
and tricks concerning self-fulfilling prophecies are not the main point
here. Although as stated already in the introduction of this book, it is
very useful and in a sense true to make the levels distinct, the point here
360 Chapter 6

is that fiction may more generally, in principle and before any real mea-
surable effect, affect reality outside of it as any other semantics that
moves thought and emotions; it may open the possible, even whole new
worlds, or it may powerfully state the real even if some names are
changed. And fiction may twist reality, distort it, amplify it, or diminish
it, making reality of fiction or obfuscating it with real effects. Or it may
lie, garble, and mislead. That is why the methodological caveat of com-
mon sense is needed before promenades “through the fictional woods” of
discourse on violence and punishment, one that, after being taken by
magic and taking into account “the mechanisms by which fiction can
shape life” (Eco 1994, 139), understands that it should settle down with a
more mundane reality check if it wants to claim something about it—
reality—anyway.
All that said, one can hopefully accept the following statement as the
starting point: fiction speculates on the ontology of violence and evildo-
ing in many interesting, instructive, and nontrivial ways, and stands on
reasonably firm grounds that connect fiction not only with truth but also
with creativity that might, at least sometimes, transcend it (even before
the important sense in which creating the new differs from scrutinizing
the old). Good fiction usually builds on strong personal experience, as in
our historical examples of tortured and imprisoned artists, or especially
today on a talent of perception and thorough historical or comparative
research and preparatory work done by the author (one may think of
Michener or Littell: the latter was not an old Nazi, nor was the first a
Hawaiian, but they ostensibly did meticulous research, producing fiction
relevant for the study of violence and punishment). Fiction can thus
present some unquestionably real problems of society and politics, in-
cluding the problems of evil deeds, violence, and punishment, and it can
sometimes do it better than some dry scientific compendium or methodo-
logically correct but shallow or irrelevant research. But there might be
more here. It is not only an alternative road to truth, one that is simply
and aesthetically easier to digest than dry science. One must not forget
the “magical” expressive element of fiction, one that is hard to explain
rationally. Doris Lessing, the 2007 Nobel Laureate in literature, writing
the first tome of her autobiography, somewhat disappointedly concluded
that her biography is perhaps inferior to her literary magnum opus The
Golden Notebook. Her statement applies to the works we use here as a
material for detecting problems: “I have to conclude that fiction is better
at ‘the truth’ than a factual record. Why this should be so is a very large
subject and one I don’t begin to understand” (Lessing 2008a, ix).
Aside from much else of what it does, Lessing’s 1960s Golden Notebook
perhaps gives better insight into “intellectual and moral climate” on the
Western Left after the Second World War than many historical investiga-
tions of the theme. The same goes for reading Stendhal’s and Tolstoy’s
works, which give excellent insight in nineteenth-century France and
 Punishment and Fiction 361

Russia: “To read The Red and the Black, and Lucien Leuwen is to know
that France as if one were living there, to read Anna Karenina is to know
that Russia” (Lessing 2008b, xv). Even if this statement sounds naïve and
overconfident (in an elementary Cartesian sense, one might ask: “How
do you know, without a clear methodological check?” or “Why should
we believe your claim?”), I am prepared to take the risk of being irration-
al and seduced by the beauty at least in this exploratory phase where
fiction makes problems come alive. If one hasn’t lived in these worlds,
one can read historical research and check them, including the accounts
of violence and punishment, but that belongs to Popperian testing of the
theory, not its introduction on the scene. A theory may come from reality,
fiction, psychology, or a dream, as in the case of Lynch’s films. And to
broaden the horizons may be good when probing violence and punish-
ment. To return to Charles Lindblom, who was also writing about differ-
ent ideological and methodological limitations of contemporary social
sciences, the scope of probing in our “troubled attempt to understand
and shape society” should not be too constrained in order to avoid im-
pairment in our thinking (Lindblom 1990, 59–77). For the purposes of this
chapter, I must say that I completely agree with him.
The second part involves a completely different type of probing. It is
the part where Aznavour’s comédiens have left the city, the magic is gone,
and we should check the spectacle against reality. This may be a pains-
taking and much wider task than one might think. What was formerly
called fact may not be so. There is cheap propaganda, politics, and cen-
sorship as well as fantasy in biographies, scientific monographs, and state
archives. Accounts of experience abound with fiction, exculpations, false
memories, or omissions. Something is too simplistic and tidy, or it is
silent on the wider frame, omitting important facts or lacking relevant
comparisons. To return here to one of our introductory cherry-picked
champions, one should in this step be careful especially in cases where
the laureated literary power, paired with strong trauma, may obliterate
the bigger picture: “In our admiration of Solzhenitsyn’s portrayal of the
camps, however, we ought not to accept on faith his version of Soviet
penal history” (Solomon 1980, 195). Now, as good skeptics, we are dis-
trusting Lessing, Stendhal, and Tolstoy, checking their narratives against
other narratives and historical context. And as in this step we know that
something is sometimes not said or said in a misleading way, we also
must take into account that something is sometimes not done, something
is not pushed to the extreme, or simply to the thing easily possible be-
cause of a fear of transgression, of interest, or simpler forces of lethargy
or stupidity. Truth of correspondence is not the truth of possibility. We
thus also take care knowing that the aggregate data are breeding grounds
of political contingency, a potential collection of lies about lies, to put it
more bluntly. Statistics in the sense of “descriptive” data acquired by a
political entity, usually the state or some of its agents, are not metaphys-
362 Chapter 6

ics but a political technology; numbers depend on categorizing what is

counted, on various levels of political decisions such as police actions,
and are subject to interpretations (see, e.g., Hacking 1991; Stone 2002).
Political fiction is a wide world. Truth may be more painful or boring
than the optimism of memory, easiness of propaganda, and beauty of
fiction, but one should finally check one’s dreams if one chooses to live
responsibly in reality. To bring this down to earth, for fiction in the nar-
rower sense of this chapter—books and films on violence and punish-
ment—the problem might be as in the following instructive example,
which will close the section.
Two authors recently analyzing violence and punishment in Sweden,
on the basis of crime fiction series that follow the paths of Chief Inspector
Martin Beck and later Kurt Wallander, wrote: “These two popular series
of novels were chosen in the belief that their popularity was indicative of
their strong correspondence with common experiences or preoccupations
in that society in the two periods they cover” (Pratt and McLean 2015,
323). To wit, Harry Potter is also popular but it doesn’t mean that there
exists a parallel world of basilisks and quidditch. Of course, there is much
in the escapist and funny world of wizardry that corresponds to the
experiences and hopes of both young and old readers, and luckily,
contrary to some of the clumsier statements appearing in the introduction
of their text, the analysis and the conclusion reached by the two academic
authors about two authors producing crime fiction are very useful, show-
ing that six Beck and nine Wallander novels compared can say something
relevant about the Sweden in the 1960s and 1970s compared to the one in
1990s and 2000s. Mankell’s cautious remarks that “fiction” can serve bet-
ter than “factual realism” in making “the world more understandable”
and that “there is a little truth in everything [he] write[s]” (Pratt and
MecLean 2015, 324, 335) offer a good familiar lead.
The question of how much is little and the necessity of comparing
fiction with factual realism are, without a doubt, questions to be an-
swered and things to be done, at least if one still wants to stick with the
labels such as “scientist” or “scholar.” And this can be performed in a
casual or more thorough way as in the court procedure—with witnesses
and evidence—perhaps bearing in mind that discourse distorts and
shapes perception but ultimately somehow and somewhere hits some
hard rock of some reality. The point is that we are only exploring, com-
fortably stuck in the first step of searching for useful heuristics, if that is
of interest to those scientifically minded who see the problem exercised
here as relevant. That said, let us then see where and how to navigate
through this realm of both emulation (mimesis) and creation (poesis),
sometimes hiding the recognizable bones of social theory and ontology
behind the pretty letters and the moving pictures of magic lanterns.
 Punishment and Fiction 363

WHERE TO DIG AND WHAT TO SEARCH FOR?

Nils Christie, quoted in the opening of the book, suggested exploring

widely in searching for images of man that influence penal policy mak-
ing, and this book is all about that: contextual thinking about violence
and punishment combining various discourses to play together or chal-
lenge one another. And fiction is the place where political ideas and
statements on violence and punishment abound. We have already seen
that through the previous sections of this chapter, through short glimpses
of Kieślowski and Kafka in the chapter on death penalty, as well as
through some other authors appearing throughout the book, where bits
and pieces of fiction emerged.
Art in general is a place of violence and punishment and that includes
not only classical forms such as poetry, sculpture, paintings, or theater
plays but also, let’s say, rock albums and comic books. Antique myths
provided the motif for the sculpture of struggling Laocoon punished
together with his sons by Apollo’s snakes, and probably the most fre-
quent sculpture and painting in Christian civilization is the punishment
of Christ transforming a Roman penal method of crucifixion into an
omnipresent religious symbol. In tracing the ontology of evil in the field
of violent crime and penal policy one could, for example, interpret Van
Gogh’s La ronde des prisonniers (The Round of the Prisoners) from 1890 (see
Rivera Beiras 2005, 167), copying Doré’s gravure; analyze comic books like
the classic The Eternaut, exploring the violent state of nature (Oesterheld
and López 2015) or Moore’s famous V for Vendetta on totalitarian repres-
sion as a source of violent evil (Moore and Lloyd 1990); or analyze songs,
spanning from politically engaged Bob Dylan’s Only a Pawn in Their
Game, about the racist social structures and politics ultimately responsible
for the shooting of a civil rights activist, to depressive and fatalistic The
Pogues’ Hell’s Ditch that uses the allegory of a rose for killer, making
explicit references to Jean Genet’s book (Genet 1977).
One should not too easily insist upon some old distinctions between
high and popular culture and thus exclude some exploitive profit-gov-
erned forms intended for mass audiences (which is quite general phe-
nomenon anyway). Television series, for example, are in an unprecedent-
ed era of grandiose production, public popularity, and critical acclaim. A
scene from the ultraviolent Game of Thrones we have already covered,
tempted to introduce much more. An episode from older Kieslowski’s
Decalogue expanded into a film to animate a somber subject of the death
penalty was also used here. Some of them are more grandiose in atmos-
phere, production, and acting than in their sophomoric philosophy, as
True Detective, eclectically combining pessimistically interpreted Nietzs-
cheanism with some sort of Jungian Manichaeism of archetypal battles
between good and evil, combining hard-boiled stereotypes with occult
symbols, vortexes appearing as tattoos, flesh relieves, lawns, bird flocks,
364 Chapter 6

and galaxies. Some of them are more amusing, such as the almost univer-
sally loved Breaking Bad, which explores the paradox of not being bad in
doing bad things, showing the descent of a lovable chemistry professor
falling down into patterns of more bizarre unlawful behavior, becoming
a destructive drug lord cooking meth for millions and killing dozens of
people. And don’t forget tough bikers doing crime and killing but also
acting as informal macho protectors of a small city, a bunch of pictu-
resque code-governed patriarchs closely knit with the local community,
appropriately labeled the Sons of Anarchy, blessed by the iconic Ron Perel-
man and Shakespearean elements of the plot.
Accounts of violent crime in literature range from fatal and apolitical
pictures of the violent subject, given in Camus’s Stranger or Genet’s Mira-
cle of a Rose, to Vian’s surrealist and ironic provocations in The Ants; from
Kafka’s ideas on violence performed by depersonalized bureaucracy in
The Process and The Castle or, as we have seen, by the punishing machine
of his baroque story In the Penal Colony, to specifically political causes of
violence and suffering as in the mentioned Solzhenitsyn’s One Day in the
Life of Ivan Denisovich or Orwell’s totalitarian dystopia 1984; from the evils
of society portrayed in Dickens’s Oliver Twist or Hugo’s Les Misérables, a
more complex discursive blend of post-Waterloo nationalism and relig-
ious providence, but where crime and violence largely stem from the
poor living conditions of the working class and where paupers are un-
justly punished for trying to survive, to the evils of nature let out of
control by technology and society in Bulgakov’s The Fatal Eggs or Gold-
ing’s Lord of the Flies, where crumbling society shows the dark human
nature. 3 The same discursive and political diversity is caught in film,
ranging from Gavras’s and Haneke’s films to the ones by Peckinpah,
Boorman, Milius, Lars von Trier, or Kubrick. I discuss some of these in
more detail in later sections.
I decided to focus on literature and film and to generally exclude
other forms of art—with the notable exception of punk rock songs deal-
ing with theodicy in the concluding chapter—because that would further
stretch the chapter (and probably the whole book rich with fictional ex-
amples) outside of any reasonable proportions. And there are some other
obvious exclusions within this field. I omit certain genres. I omit crime
novels, traditional or more ambitious. I omit horrors, both in literature
and film—their Manichean setting, forces of chaos, metaphysical and sty-
listic hyperbole, pornography of evil and violence—as well as some phil-
osophical accounts mixed with pornography that speak much about vio-
lence, be it Bataille’s already mentioned longings for ecstasy through the
horror of punishment or, beyond a few notes, de Sade’s pleonexia—a
testimony to the ultimate truth of private desire that attacks people at
hand when one cannot destroy the sun itself, as wished for by one of de
Sade’s depraved characters. Furthermore, I mostly reflect on primary ma-
terial. Secondary literature, both printed and circulating the web, is im-
 Punishment and Fiction 365

mense, and aside from sporadic references, it is in such a display unman-

ageable, although I am aware not only of the advantages but also of the
pitfalls of entering into the rich interpretive grounds as if it were a clean
slate, but since I afforded myself that luxury in reading the religious text I
hope I can pull it off with fiction. Some unavoidable classics are omitted:
the “inscrutable” Coetzee I have partly covered elsewhere in English, so
there is no need to cover him here (Petković 2015). And from others as
unavoidable, needless to say, I have selected those that I enjoyed the
most, that I found most convincing or perhaps most manipulative when
exploring the possible causes and consequences of violence and punish-
ment. After I further interpret some essential traits of the approach and
the categories, I cover some paradigmatic examples that exemplify dis-
courses in their simpler elements rendered in extreme form in order to
finish up with some problematizations and complexities that combine
those elements and in a way go beyond them.

AND HOW TO DIG? IDEOLOGICAL GEOGRAPHY AS A CLUTCH

FOR READING FICTION

The Left and the Right are a figment of political fiction, but a long-stand-
ing one and useful to a point, for preliminary tidying up, even if contro-
versial and provisory, of the issues of penal politics and policy and their
“crusading issues” (Miller 2002). The Left blames society, thinks structu-
rally, and wants amelioration or revolution. The Right blames the indi-
vidual, thinks in terms of singular responsibility, and wants authority
and punishment. In his short story Fog from the late 1940s, Boris Vian
parodies the stereotypic discourses of Left and Right on violent crime:
“This established, if we consider that from his youth my client only
knew robbers and assassins, that all his life he had before him an exam-
ple of debauchery and decadence, that he gave himself to this life-style
and adopted it as normal to the extent that he became a debauchee,
robber and assassin himself, what can we conclude?” The jury was
confounded by such eloquence, and an old bearded man on the ex-
treme right with wise diligence watched for an involuntary splutter
from the floor. But once more the teacher was obliged to answer:
“Nothing,” and blushed. “We will conclude that submersed in an hon-
orable milieu, my client only would have contracted honorable traits”
“But,” concluded the lawyer, “what I told you just now wasn’t true. My
client is of a reputable family, has received an excellent education, and
killed the victim voluntarily and in full conscience so that he could
steal his cigarettes.” “You are right!” the jury shouted unanimously.
After deliberation, the murderer was condemned to death (Vian 1992,
81–82).
366 Chapter 6

The reader will hopefully accept my point that these labels brought to the
extreme are but a joke, as in Vian’s parody. I, however, do not have much
choice but to still use the traditional ideological categories of Left and
Right to classify the analyzed examples. I am aware that they do not do
full justice to the nuances in the interpreted material, and that they are
floating signifiers often used to manipulate and obstruct thinking about
the content, as the other labels that are easily attached to things political,
but they still come in handy and are practically hard to avoid in analysis
and grouping of the analyzed discourses. People still move along this
ideological geography. Let me thus try to give some provisional content
to them, also pointing out some points of contestation.
The way to give some operational content to these labels—possibly
controversial, but familiar for those versed in the history of political theo-
ry—is to evoke Carl Schmitt’s now classical treatise The Concept of the
Political. In the seventh chapter of that essay, Schmitt stated that every
political theory presupposes certain anthropology, or as we could put it,
a certain ontology of the political subject. The controversy here is not in
Schmitt’s on-and-off relationship with the Nazis but in his insistence on
the statement that all “genuine political theories” see man as evil, in the
sense that he is dangerous and unpredictable (Schmitt 1996, 58–68; for a
very useful Strauss’s follow-up, see Meier 1995, 91–119, 124–26). A funda-
mental picture of the subject that fuels political theory—its fundamental
“anthropological belief”—is important because it can serve to draw an
essential distinction between various political theories and ideologies. In
that sense, for example, distinction between the Left and Right can be
seen as a distinction between proposing anarchy (not in the sense of
disarray but absence of centralized political hierarchy governing the sub-
jects by rules and sanctions) and believing in authority. The Left ultima
linea believes that political authority interfering in the social sphere, as a
potential sphere of freedom of the individuals, induces all kinds of evil. 4
The Right, on the other hand, espouses a strong belief that man is more or
less naturally evil, that is, dangerous and inclined to violence if left to do
what he pleases, and thus has to be subjected to political authority, usual-
ly starting from the authorized pater familias in the family. Depending
on the conception of human subject, the presence of authority, and its
penal policy, or precisely the opposite—its absence—produces crime and
other social evils. Either way, the ontology of subject shapes the funda-
mental logic of a political theory and sets the stage for its penal implica-
tions in the normative sense.
However, as (even) fiction shows, it can become more complicated
than what this more or less traditional position on the Left suggests,
unambiguously tracing the causes of evil to an unjust society and giving
limited autonomy to moral actions of the individuals. A good illustration
of this can be found in Fritz Lang’s classic thriller film M from 1931 that
tackles the problem of evil. The film tells a tale of a compulsive serial
 Punishment and Fiction 367

killer of young girls, perhaps a pedophile, finally caught in an orchestrat-

ed action of “normal” criminals (smugglers, thieves, pimps, etc.), who are
irritated by police pressure and the bad name that the vicious killer gave
to all the “decent criminals.” He is judged in front of a crime syndicate in
a lynching atmosphere and saved by the police at the last moment. In a
convincing monologue, the murderer Hans Beckert, played by Peter
Lorre, claims he cannot constrain himself, no matter how hard he tries.
The criminals, knowing that Beckert will ultimately be released from
some prison hospital and that he will probably kill again (a critique of the
lenient medical rehabilitative model), think that only solution is to kill
him on the spot. However, his “lawyer,” provided by the criminals in
order to imitate fair trial and the due process of law, accuses them of
hypocrisy (the criminal boss presiding over the trial is himself wanted for
three murders) and claims that the fact Beckert cannot help himself is the
precise reason why he must not be killed. In other words, he is not re-
sponsible for his deeds, so he should not be punished. The final scene
stops before the sentence at the regular trial by the state is pronounced.
Instead of a judge’s verdict, the message is sent directly to the viewers
stating that all of us should take better care of our children.
In Lang’s film we can see all the intricacies of political interpretation.
They open in front of us on both dimensions, of social diagnostics and
policy prescriptions. On the one side—let us, then, follow Schmitt and
label this position “Left”—we could speak of a hypocritical society seek-
ing scapegoats for its own fallacies. The killer is but one of its lost and
alienated children, perhaps a neglected patient waiting to be cured. On
the other side—we can call it “Right”—the killer is naturally evil. He
cannot help but kill young girls: it is in his “nature.” Furthermore, wheth-
er he is morally guilty or not seems to be beside the point. Retribution to
the victims’ families and protection of society demand punishment, and
it looks like the cheapest solution, in utilitarian terms, is to take depraved
killer’s life; treatment is costly, dubious in terms of success, and with a
high chance of recidivism.
We do not need to resolve the paradoxes of M here. For now, the Lang
example serves to suggest that truth in these matters is—if it is at all
unambiguously lying somewhere “out there”—hard to find, and that pol-
icies to counter evil deeds and violent crime are a slippery terrain for
political theory and analysis. But it also serves to show how the Left and
the Right with their ambiguous foci on aspects of society and individual,
even if vague and artificial, may serve to speak sensibly of the matter
interpreted. We do exactly the same dealing with paradigmatic dis-
courses of violence and crime in literature in the next section.
368 Chapter 6

ONTOLOGY OF EVIL IN LITERATURE: SOCIETY, NATURE, REFORM,

REVOLUTION, AND REPRESSION

We can build from simpler to the more complex positions in exploring

discursive ontologies of violence and punishment in fiction. A good start-
ing place for probing is the naïve position on the Left, the one that sees
the causes of violence in society as well as the cure for its reform. At least
in literary criticism this naïveté is admitted. Ironically, the genre that
depicts society and its ills, the “socialist realism,” is not realist at all. Its
function is political: its role is to take part in an all-encompassing revolu-
tionary struggle. The encyclopedic definition is pregnant and precise:
“Socialist realism is a teleologically-oriented style having its purpose the
furtherance of the goals of socialism and communism” (Project Guten-
berg n.d.). The novel Mother, written by Maxim Gorky in the beginning of
the twentieth century, is a good example of that “teleological” discourse
where a strong sense of political purpose shapes the diagnosis. In the first
chapter of the novel, Gorky draws a firm connection between the desper-
ate lives of the working class at the turn of the century and their inclina-
tion to violence, which is in no way instrumental but only serves as a
relief for their pointless existence. The factory is used as a picturesque
metonymy for the brutalities of capitalism and social miseries of the
workers: “The day was swallowed up by the factory; the machine sucked
out of men’s muscles as much vigor as it needed” (Gorky 1907, chap. 1).
The causal chain in the first chapter consists of a few interconnected
segments: “the accumulated exhaustion” deprives workers of their appe-
tite; “exhausted with toil,” they drink lots of vodka; they beat their wives
and children; and they fight among themselves, sometimes killing each
other. This all affects the children, who are socialized into this pointless,
violent existence: “They were born with this disease of the soul inherited
from their fathers. Like a black shadow it accompanied them to their
graves, spurring on their lives to crime, hideous in its aimless cruelty and
brutality” (Gorky 1907, chap. 1). Unless political struggle changes things,
constant and pointless drunkenness and violence appears as “perfectly
legitimate”: “Life had always been like that. It flowed on monotonously
and slowly somewhere down the muddy, turbid stream, year after year”
(Gorky 1907, chap. 1). It is of less importance if we take the offered ontol-
ogy of violence produced by injustices of capitalism as a literary depic-
tion seeking revolution today or as a caricature belonging to the past. The
idea that capitalism is a lesser evil that can be cured by the political work
of social democracy changes nothing fundamentally in this picture: we
can, for the purpose of this argument, calmly accept the historical devel-
opment in which the social policies long ago curbed extreme versions of
(nineteenth-century) capitalism. The ontology of evildoing is similar in
both variants: violence comes from society, mostly from its unjust eco-
nomical mechanisms, and can be best cured by inducing changes in soci-
 Punishment and Fiction 369

ety by the means of social policy or by fundamental economic reform,

perhaps demanding political revolution, but certainly not by narrow
measures of criminal justice policy making. Punishment of the individu-
als in this context is superficial, ineffective, and hypocritical.
The opposite is to posit human nature as such that it makes reforms
hard or impossible. If an unjust society really produces evil, then liberal
democratic politics and its penal policy gives too little and comes too late.
However, there is very probably much more to violence caught both by a
positivist discourse of crime and a moralist discourse of evil (which we
explore in chapters to come) than is provided by the discourse of Gorky’s
socialist realism and its lighter versions. Our second excerpt comes from
roughly the same time, but its position is quite opposite. We return now
to Dostoyevsky’s Crime and Punishment from the second half of the nine-
teenth century, a classic that speaks of psychology or, more generally,
nature as the root cause of evil. If we put in brackets the strong psychoan-
alytical undercurrent of Raskolnykov’s relationship with his poor sister
Avdotya, caught between a despotic loveless bureaucrat Luzhin and a
profligate suicidal pedophile Svidrigaylov, that triggers the crime (Ras-
kolnykov is pushed to commit it immediately on reading the letter de-
scribing his sister’s misfortunes), the interesting moment in the novel for
us is not the relatively banal deed but the discourse surrounding it. The
killings get the plot going, but the discussions that the killer, Raskolny-
kov, leads with cunning police investigator, Porfiry Petrovitch, together
with his friend, Razumikhin, are the literary place where the discourse on
evil and causes of crime comes to prominence. Dostoyevsky’s message is
that socialism does not cure problems of human nature that are respon-
sible for evil deeds. Not the factory, a metonymy of capitalism successful-
ly producing evils, but the phalanstery, a metaphor for socialism unsuc-
cessfully curing evils and its architectural microcosm, is used in the fol-
lowing excerpt, serving to pinpoint the problems of naïve socialist ideas
on preventing evil:
I am not wrong. I’ll show you their pamphlets. Everything with them is
“the influence of environment,” and nothing else. Their favorite
phrase! From which it follows that, if society is normally organized, all
crime will cease at once, since there will be nothing to protest against
and all men will become righteous in one instant. Human nature is not
taken into account, it is excluded, it’s not supposed to exist! They don’t
recognize that humanity, developing by a historical living process, will
become at last a normal society, but they believe that a social system
that has come out of some mathematical brain is going to organize all
humanity at once and make it just and sinless in an instant, quicker
than any living process! . . . And it comes in the end to their reducing
everything to the building of walls and the planning of rooms and
passages in a phalanstery! The phalanstery is ready, indeed, but your
370 Chapter 6

human nature is not ready for the phalanstery—it wants life. . . . You
can’t skip over nature by logic. (Dostoyevsky 1866, part III, chap. 5)
The part is spoken in conversation by Razumikhin who is “inter-
rupted with heat” to explain how one cannot put “the whole secret of life
in two pages of print” (Dostoyevsky 1866, part III/chap. 5). The symbols
in the names are clear, at least to the speakers of Slavic languages: the
troubled killer’s name, Raskolnykov, connotes problems of psychology,
nature, and loss of control (the literary meaning of raskol is “divide” in
Croatian), while Razumikhin’s name is a strong positive signifier (razum
means reason in Croatian, razumjeti means “to understand,” and so on),
which associates the quoted message with reasonableness and prudence.
The final shocking example, serving to support the idea that nature is the
cause of problems, also comes from Razumikhin who asks how one can
blame society when a forty year-old man rapes a ten-year-old girl, a
theme that is also explored in Dostoyevsky’s novel Demons, bringing us
back to Lang’s Beckert from our earlier paragraphs. 5
However, if the problem is in nature, what can be done by politics?
How can we stop Raskolnykov from killing the evil granny? Any con-
ceivable penal policy devised by the state does not seem to be up to the
task. If socialism does not cure evil, liberal democracy with its penal
framework certainly does no better job. Liberal political theory, some-
what agnostic in the matters of human nature, cannot interfere in private
sphere of the individual, who must first commit the violent crime in
order for the state to react. Liberal political theory starts from the given
natures of its subjects. Nature is the source of evil; moral advance, if one
can speak of such a thing, is at best very slow and fickle. The ontology of
the individual demons that haunt human nature does not open space for
optimism of social reformers and political revolutionaries.
But what if evil is a product both of bad society and bad nature? This is
the position taken by Aldous Huxley in his utopian novel The Island from
the early 1960s, calling for the double reform of both society and nature.
Defining the spirit of the decade, the novel portrays a utopian political
community located on the island of Pala, where subjects live peaceful and
happy lives, enriched with different self-fulfilling experiences. The bless-
ings of Western science and technology are combined with Eastern think-
ing and holistic spiritual doctrines. The economy is not industrial; the
environment is preserved, while technology is applied in a controlled
and limited manner. Huxley’s eclectic New Age heaven brings the
unique ritual of initiation to higher spheres of perception: Pala’s subjects
develop their spirituality by taking moksha, a psychedelic drug fabricated
from mushrooms.
The peaceful utopia cannot survive in a belligerent surrounding, so
Palanese society ultimately falls victim to a military defeat. However,
discussions between Will Farnaby, a shipwrecked journalist who enthu-
 Punishment and Fiction 371

siastically explores Palanese society, and Pala’s inhabitants, especially Dr.

Robert, grandson of Dr. Andrew MacPhail, a Scottish physician who co-
founded Pala, reveal how Pala is, internally, almost literally devoid of
violence. From violence in the family and violent crimes by petty crimi-
nals to war crimes orchestrated by ambitious political leaders, ontological
statements from Huxley’s Island portray violence as stemming from man-
kind’s yearning for power and domination. The problem for Huxley’s Dr.
Robert is that all small-scale and large-scale, political and nonpolitical,
“tyrants and sadists”—all the frustrated “power-loving troublemakers,”
are not curbed and reformed early enough in their lives. Together with
society, politics, morality, and the culture of the West, these violent actors
produce a spiraling chain of suffering. The evil is written both in human
nature and in the structure of a society that enables human nature to
develop its destructive potential to the fullest.
Since there are two fundamental types of violent subjects, “two dis-
tinct and dissimilar species—the Muscle People and the Peter Pans,” two
different strategies of violence prevention are employed in Palanese soci-
ety. The Peter Pans, immature romantics who want to compensate their
inferiority complex with excesses of power (Huxley’s ultimate example is
Hitler), are dealt with by the means of “early diagnosis and three pink
capsules a day before meals.” Jail sentences, psychoanalysis, and psychia-
try are no solution for Dr. Robert; neither are moralistic Christian ser-
mons: “Words about sibling rivalry and hell and the personality of Jesus
are no substitutes for biochemistry.” The Muscle Men (the ultimate exam-
ple is Stalin) are, however, “as muscular” and “just as tramplingly extra-
verted” on Pala. Their lust for power is controlled by Palanese societal
and political arrangements; it is deflected “from people and on to things.”
While it would perhaps be a simplifying overstatement to say that a
potential totalitarian dictator becomes a lumberjack, Huxley’s utopian
social reformers offer no doubt about the success of the Palanese social
experiment: “A crop of potential failures and criminals, potential tyrants
and sadists, potential misanthropes and revolutionaries for revolution’s
sake, has been transformed into a crop of useful citizens who can be
governed adandena asatthena—without punishment and without a
sword.” The following passage sums up lengthy Dr. Robert’s discourse
(from which the quoted bits in this paragraph and the one before are
taken), and gives the essential contours of Huxley’s ontology of violent
evil, focusing on the classical liberal thinker who theorized on power,
opening our fourth chapter:
That was Acton’s fatal weakness. As a political theorist he was alto-
gether admirable. As a practical psychologist he was almost nonexis-
tent. He seems to have thought that the power problem could be solved
by good social arrangements, supplemented, of course, by sound mo-
rality and a spot of revealed religion. But the power problem has its
roots in anatomy and biochemistry and temperament. Power has to be
372 Chapter 6

curbed on the legal and political levels; that’s obvious. But it’s also
obvious that there must be prevention on the individual level. On the
level of instinct and emotion, on the level of the glands and the viscera,
the muscles and the blood. (Huxley 1962, 189)
The passage points to another limitation in prevention of evil that we
are faced with if we accept a liberal framework for penal policy, as well as
social-democratic solutions within that elementary institutional context.
Huxley is warning us that the narrow liberal conception of political theo-
ry will not produce an effective solution. We return to this theme later in
this chapter, employing our most pessimistic fictional forces, but here it is
worth noting that liberal political theory, tailored to the existent liberal
democracies and fact of pluralism, is not good enough for solving or at
least ameliorating the problem of violent evil. In the utopian framework
of Huxley’s Island, diminishing violence requires not only total reforma-
tion of society, politics, and ideology but also a determined imposition of
behavioral patterns onto subjects, perhaps even involuntarily tinkering
with biochemistry. While Dostoyevsky stops at diagnosing that the prob-
lem is in nature and that naïvely conceived socialist reforms do not work,
Huxley is much more ambitious: he demands total change of society and
nature. This is, however, deeply illiberal.
A Foucauldian empirical remark would highlight that the imposition
of behavioral patterns and subtleties of pharmacotherapy has long been
going on in the West, sometimes hitting subjects at an early age, but
liberal political tradition offers a bit more maneuvering space for sub-
jects, and not just in theory or ideology. Even if the main points of Hux-
ley’s dual ontology are accepted, his solution for evil seems radical. The
New Age coating of Huxley’s discourse does not alter the fact that totali-
tarian price is paid for Palanese annihilation of violence. Peter Pans, Mus-
cle People, and others, after all, do not seem to have much choice in this
heaven on earth. To pay at least some respect to the ontology of a political
subject that should be informing present constitutional liberal democra-
cies—free will of the autonomous subject—we must, paradoxically, turn
to the other side of the ideological spectrum in our search for further
solutions in penal policy design. Discourses on the Right speak to us of
nature and repression.
The idea that human nature is evil—in the above-mentioned Schmit-
tian sense, that human beings are dangerous and potentially violent—is
commonplace in literature. What Dostoyevsky hinted at becomes more
explicit in several discourses I present here. The idea that nature is evil
does not only appear among Christian authors who supply us with vari-
ants on the theme of original sin (see Borges 1999, 133–34), it also appears
outside of interpretive keys that reference a particular religious world-
view. A classical place in the first sense (in our case: Christian) is William
Golding’s Lord of the Flies, an allegorical novel from the 1950s about
 Punishment and Fiction 373

group of preadolescent boys who, after a plane crash, find themselves on

a desolate island. From singing kyrie eléison in a well-ordered society (or
at least in a repressive enough education system), where grownups drink
tea, discuss and solve problems (Golding 1954, 101), the boys end up
killing each other as their “true” nature takes over. 6 Simon, the Christo-
logical figure, is killed, as is Piggy, an overweight boy with glasses (and
the sole one with the “abilities of abstract thinking”), in a story that
intents to depict “the darkness of man’s heart” (Golding 1954, 225). No
wonder that Eagleton in his book On Evil (2010) calls Golding a Christian
pessimist.
On the other hand, similar view of nature can appear within skeptical
and ironic frameworks, with less religious overtones. 7 The Fatal Eggs, a
short story from the 1920s written by Mikhail Bulgakov, is good example.
In the interpretively rich narrative, chaos is spawned in society by a work
of politically unleashed and amplified nature. In the biological laboratory
experimenting with amphibians, a red ray of light is accidentally discov-
ered by Professor Persikov. The ray makes amoebas, and then frogs, re-
produce at enormous speed and devour each other. In the process, the
most unscrupulous, most destructive, or simply most “evil,” prevail: “It
was the best and strongest who won. And they were terrifying” (Bulga-
kov n.d., 6). When politics in the early Soviet Union gets interested for
political and social potential of the ray, the ray is accidentally used on
reptile eggs. The invasion of reptile mutants almost destroys society.
They are defeated not by the civil guard or the armed forces but instead,
not surprisingly, by the infamous Russian winter, a force of nature itself,
which turned to be historically important in curbing various imperial
projects coming from the West. Instead of the depth of moral fall, Bulga-
kov’s story presents the cynical view of evolution, where its essential
impulses of reproduction and aggression that work in humans are am-
plified and mediated to the reader through a layered metaphor of a red
ray, adding ideology on top of the natural chaos in the confines of the
international cordon sanitaire.
Evil and destruction come naturally. Within the discourses we have
placed on the right side of our political spectrum, evil is often fatally
portrayed, endowed with a certain demonic persistence and aesthetic
qualities. Beneath the aesthetics, the ontological difference in comparison
to the position from the earlier sections of this chapter is that evil essen-
tially comes from humans. The arrangement of society is secondary: hu-
man evil manifests itself and naïve utopian designs will only make things
worse. The second part of the difference that constitutes the position on
the Right, skeptical to any form of belief in social progress and utopian-
ism, is that human evil needs fear, sanctions, and repression in order to
be controlled. In another words, it needs strong authority.
This point is stated in Antoine de Saint-Exupéry’s second novel, Vol de
nuit (Night Flight), where the author’s position is expressed via repeated
374 Chapter 6

reflections of Rivière, the director of nocturnal postal flights and arguably

the central character of the novel. The general idea is that individual good
can and must be sacrificed for the good of the whole, but one must note
that Rivière does not hold that individuals per se are morally evil. His
reflections are focused on the general forces of corruption that tend to
thrive if there are neither rules nor threat of punishment, that is, author-
ity. As in The Little Prince, strengthened with botanical metaphors of
chaos (jungle and lawn), de Saint-Exupéry’s discourse points to the deca-
dence that nature brings to culture, perhaps close to Bulgakov’s view of
nature’s destructiveness, but with the clear difference of bringing in the
explicit policy prescription for penal repression:
Rules are . . . like rites of religion, which seem absurd, but they shape
humans. . . . Am I just or unjust? I don’t know. But when I punish, the
number of engine failures falls down. . . . I did not lay him off so
brutishly, but that evil, for which, perhaps, he was not responsible, but
which spread through him. . . . If we don’t eradicate evil when we
stumble upon it, wherever it may be, the lights go out: to fail and not
suppress it when it accidentally reveals its weapons is simply a
crime. . . . It is interesting how we lose control of events, how a big,
dark force reveals itself, the same one that erects jungles, which grow
and break through. . . . I love all those people, and I am not against
them, but against the things which pour out of them. . . . Maybe it is
clear. The same is with the eternal struggle of the gardener on the lawn.
The urge itself forces his hands to the ground, which ever after pre-
pares the primordial forest. (de Saint-Exupéry 2005) 8
As in The Little Prince, a well-crafted allegory of a middle-aged man seek-
ing the simple and true values of childhood, but also as a more or less
subtle piece of conservative discourse, evil develops inside us if we don’t
strike it down when it is small and we grow up into the empty existences
of modern world, forgetting the importance of rites since we falsely think
we can count and buy everything. The baobabs have to be weeded out
before they destroy the planet. And since people forget to do it, such
thing as a strict and benevolent authority is posited in this discourse,
preserving the tradition that works against corruption. An especially
vehement and significantly less romantic version of this discourse can be
found in Michel Houellebecq’s writings. His Elementary Particles from the
late 1990s portray evil nature and imply the need for repression. Unlike
in the more sublime expressionist Confusions of Young Törless (Musil
2001), dealing with the similar problematic in a similar institutional set-
ting, adolescent boys are explicitly equated with animals in the pack. The
stronger dominate the weaker—brutally beat, sexually harass, and hu-
miliate them. In boarding schools things get worse when, in the naïve
spirit of the 1960s, the regime of “self-discipline” is introduced. A leftist
solution that relaxes the usual patterns of authority makes things worse:
 Punishment and Fiction 375

One or two cruel elements were enough to reduce the others to a state
of savagery. In early adolescence, boys can be particularly savage; they
gang up and are only too eager to torture and humiliate the weak.
Cohen had no illusions about the depths to which the human animal
could sink when not constrained by law. . . . Unfortunately, a ministeri-
al directive taken after the riots of 1968 introduced an autodisciplinary
system in boarding schools and a reduction in staffing. The decision
was very much of its time, and resulted in considerable savings in
salaries. It became easier for pupils to move about at night, and soon
the bullies took to staging raids on the younger boys’ dormitories at
least once a week. They would bring one or two victims back to the
cinquième dormitory, where the ceremonies would begin. . . . For the
most part, animal societies are structured according to a hierarchy in
which rank relates directly to the physical strength of each member.
The most dominant male in the group is known as the alpha male, his
nearest rival the beta male, and so on down to the weakest of the group,
the omega male. (Houellebecq 2001, part I/chap. 8 “The Omega Male”)
To bring some ambiguity back in, a reduction of staff in the wider
array of state apparatuses could perhaps be understood as a “neoliberal”
measure, more to the Right than to the Left on the ideological spectrum,
but the essential idea is that the weakening of authority and its replace-
ment with different social programs is a bad thing to do because it under-
estimates the “evil” in human nature. The idea that evil is natural part of
the human condition could, perhaps paradoxically, be reconciled with a
liberal framework. The view that human nature is evil is combined with
complementary view that aggressive subjects are also driven by a more
fundamental drive for self-preservation. Since anybody can kill anybody,
and the final consequence of an easily imaginable spiral of violence is the
state of destructive civil war where all stand against all in general inse-
curity, the prospect of such evil can drive the minimal political consensus
on authority, rules, and punishment. It all returns to Hobbes and the
authority of Leviathan, to the backbone of liberalism. Or more recently,
addressing a more specific historical situation and set of cultural and
personal problems, when the victimized boys become old decadents on
the verge of andropause, annoyed by feminism and on a daily basis
consuming Internet pornography, as Huysmans’s middle-aged bureau-
crats consume their daily meals in lousy diners with a considerable lack
of pleasure, the problem of authority and the lack of faith may find an
ironical solution in submitting to an imported religion (Houellebecq 2015,
26, 300; Knausgaard 2015).
There is a normative twist to this negative view of human nature.
Nietzsche affirmed its will to power: hate toward nature comes from the
weak, those who are sick from nature—that is, who are sick from real-
ity—seek to overthrow it with the ethics of the weak (Nietzsche 1990).
And Nietzsche’s iconoclasm, aiming not to offer pessimistic morality but
376 Chapter 6

to abolish slave morality, is pale when compared to an almost century

older de Sade’s discourse that vividly describes the brutalities of human
nature combining philosophical reflection with a precise pornographic
dissection of orgiastic violence. According to de Sade, for example, in
Justine, the human being is part of nature, which is but an eternal series of
violent crimes that strong perform over the weak (de Sade 1994). In one
sense, however, that discourse is not revolutionary but conservative: per-
verse enjoyments, by virtue of their definition, need normal moral and
political order to fulfill themselves as transgressions. Its very vocabulary
reveals it.

THREE VARIATIONS ON NATURE’S EVIL

When it comes to above-intimated shifting of the ontology within this

discourse—or better said, the ontology remains but it is differently evalu-
ated in a discourse—there are at least three illustrative possibilities. First,
the one of fight as a test offered by the subject in the middle. Second is the
one that amplifies it, sort of “nature on steroids,” metaphorically but sort
of literally as well. In contrast to these two discursive options, stands the
one of the weak or civilized subject who sees this as the ultimate horror.
In other words, when cruelty of nature is accepted, the gray wolves meet
super-space macho animal Riddick and Tennessee Williams, all of them
expectedly approaching the same subject with different sentiments. Since
the last variation is given in Mankiewicz’s beautiful black-and-white ren-
dition, this is also an introduction into the probing of film for violence
and punishment, comprising three films with different discursive treat-
ments of the cruelty of nature.
The Grey is a 2011 biologically and realistically awkward thriller that
follows oil platform workers who survive a plane crash in Alaska only to
get eaten one by one by highly territorial wolves. Although the wolves
turn out no less stubborn in their appetite for men than Spielberg’s blood-
thirsty great white sharks, thus provoking protests from environmental-
ists, the film is also an allegory of trying to survive against the odds.
Wolves aside, it is character building in a Bildungs film, so to say, with
normative overtones. Struggle gives reason for men to live (women are
present in retrospective dreams, memories, and fantasies, a bit devoid of
subjectivity). The cruelty of nature, its malice, is evident, be there God or
not, and that is good for men, testing their courage and strength. It is
Houellebecq but from a different point of view, told not from the per-
spective of the omega male with an ontological science fiction solution of
abolishing sex, but from the perspective of a wise and strong alpha male,
Liam Neeson, paralleled with the extremely big bad wolf leading the
pack. The film’s poetic motto rhyming with its title sums it up after all:
 Punishment and Fiction 377

“Once more into the fray/Into the last good fight I’ll ever know/To live
and die on this day.”
With less pathos and more unpretentious fun for those who want to
take it without high aesthetic expectations, another film conveys the same
ontological message but through a more macho “bring it on” discourse.
Riddick, an alien Übermensch pumped up with steroids, returns in the
eponymous film in a commercially successful franchise, after Pitch Black
and The Chronicles of Riddick, as a self-referential myth, an essence of
himself. He feels best on an arid planet that abounds with predatory
wildlife; he injects venom and builds the immunity necessary to defeat a
colony of especially nasty mud demons. “I lost pace. I’ve become soft. My
instinct left me,” he laments after the fairly long period of ruling the
world from the dark throne where he got by his fighting skills. Nature is
affirmed against culture, as violence, a fight that keeps fit against culture
as decadence. It is Saint-Exupéry but the other way around.
More classically, nature is met with horror in a specific interpretation
stemming from a specific identity and the fates of a life history. Suddenly,
Last Summer is another Tennessee Williams play that made it to film.
Nature is chaotic in it, like in Žižek’s elaborations, and its order is cruelty,
not seen coldly from God’s-eye-view, as in Malick, but from fearful and
anxious human eyes. Joseph Mankiewicz’s 1959 movie has a series of
stars in memorable roles: Montgomery Clift as a timid Dr. Cuckrowitz, a
surgeon doing his job in times when this specialization could still be used
as a tool of psychiatry; Katharine Hepburn as Violet Venable plays selfish
devouring mother of Sebastian, an unpublished poet who had an unusu-
ally close relationship with his mother, although he is not seen in the
movie. Only his death is, as a reminiscence of his poor cousin. And the
poor cousin—young, beautiful, and disturbed Catherine Holly, played by
Elizabeth Taylor—is now a patient in a mental institution, driven into
insanity by the mysterious events of the last summer and of witnessing
her cousin’s violent death. Mother wants her lobotomized, which indeed
happened to Tennessee Williams’s sister, providing a motif for the play.
Holly’s equally poor relatives are not horrified but eager to accept the
operation, which is a condition to get an inheritance from their aunt
Violet. Instead of performing the lobotomy, Dr. Cuckrowitz resists the
dual temptations of a rich donation and career opportunities and instead
injects “truth serum,” which makes Holly reveal the horrifying story
haunting her: when his mother became too old, Sebastian used Holly, in a
transparent white bathing suit, to attract poor young men from the Span-
ish seaside and then sexually use them. The routine ended when the boys
tore him apart and cannibalized him in the ruins of a temple near Cabeza
de Lobo, Wolfshead, referencing the Greek mythology of live sacrifice.
Instead of the poor cousin, the mother is the one who finally ends up in
the asylum.
378 Chapter 6

The idea of destruction, perhaps creation through destruction, more

explicit in the Indian Shiva-Vishnu dialectic and more obscure in the
Faust, as we see in chapter 8, is present in various symbols amplifying the
plot in the story. It is selfish and largely sexual in character: the will to
eat, have or sexually possess at the cost of the destruction of others is
omnipresent. The son is seduced and possessed by his mother and, as a
failed Oedipal figure, channels his desire to boys, who devour him, act-
ing as a hand from the deranged mother who has devoured his life. They
spend time in an enormous private garden, not a harmonious Eden but a
garden of cruelty, where they feed the Lady, a Venus fly trap plant, with
imported flies as he has feasted on a foreign youngsters to satisfy his
mother. When Dr. Cuckrowitz is escorted through this same garden, the
plant metaphor is paired with the story of flesh-eating birds devouring
turtles on Encantadas, the Galapagos Islands literary enchanted by Mel-
ville, which had been visited by mother and son, seeing “something that
Melville hadn’t written about,” namely the eggs laid by the big turtles.
The son made his mother look at the cruelty of life:
In time to witness the hatching of the sea turtles, and their desperate
flight to the sea, the narrow beach, the color of caviar was all in motion.
But the sky was in motion too full of flesh eating birds . . . and the noise
of the birds. Their horrible savage cries circled over the narrow black
beach of the Encantadas, while the newly hatched sea turtles scrambled
out of their sand pit, and started their race to the sea, to escape the flesh
eating birds, that made the sky almost as black as the beach. . . . Alive,
all alive, as the new hatched sea turtles made their dash to the sea, the
birds hovered and swooped to attack, and hovered and swooped to
attack, they were diving down on the sea turtles, turning them over to
expose their soft undersides, tearing their undersides open, and rend-
ing and eating their flesh. . . . Sebastian guessed that possibly only one
hundredth of one percent of their number would escape to the sea.
Dr. Cuckrowitz answers with a programmatic rational sentence, “Na-
ture is not created in the image of man’s compassion,” and is met with
the crescendo of emotional whirlwind seeing in birds feasting a more
general theme of nature’s cruelty, a microcosm of nature’s operation that
is seen as divine order, foreshadowing the motives of the concluding
chapter. Needless to say, this includes violence of humans to each other,
as we see them use and devour each other in the movie. This is God in
action, a strange brew of nature and psychoanalysis, affirmed as “the
whole thing,” a microcosm reflecting omnipresent logic, given as the
mother’s answer to another skeptical and seemingly naïve Cuckrowitz’s
question (“Do you believe he saw God?”):
Nature is cruel. Sebastian knew it all along. But not I. I said, no no,
those are only birds, turtles, not us. I didn’t know then it was us. That
we are all of us trapped by this devouring creation. I wouldn’t, couldn’t
face the horror of the truth, even in that last day of the Encantadas,
 Punishment and Fiction 379

when Sebastian left me, and spent the whole blazing equatorial day in
the crow’s nest of the schooner watching that thing on the beach, until
it was too dark to see. And when he came down the rigging, he said
well now I’ve seen him, and he meant God. . . . He saw the whole thing
there that day on the beach. But I was like you, I said no . . . I refused to
believe. . . . Until suddenly last summer . . . I learned my son was right!
That what he had shown me in the Encantadas was the horrible, the
inescapable, truth.
Sebastian’s blank pages reflect God’s poetry of nature, the violent, crea-
tive, and destructive system where violence and punishment are loosely
administered and where various discourses use different names for simi-
lar principles, which is expressed in the following interpretation that was
helpful to me in reading the piece: “Sebastian Venable will accept being
arrowed allegorically—and devoured literally—in order to feel in his
own flesh the cruelty of this Mother, Nature or God who both gives life to
us and kills us. All human beings are Oedipuses who are doomed to
return to the bosom of the original Mother” (Gabriel 2013).

LEFT AND RIGHT IN FILM: GERMAN CHILDREN’S STORIES, STRAW

DOGS, AND SOME OLD TESTAMENT JUSTICE

As these three examples witness, the world of cinema offers interesting

variations of the portrayed discourses on violence and roots of evil, and
the ontologies of the political subject relevant for penal policy. A different
discursive medium, with its altered angles and shifted accents, offers
possibilities to continue our probing a bit further in this chapter. Perhaps
the strongest leftist cinematic statement on specifically political violence
to the day is Costa Gavras’s Z from the end of the 1960s. The film tells a
universal story—with strong and intended references to the events pre-
ceding the then-actual authoritarian rule of the military junta in Greece—
about the charismatic left-wing politician leading the peace movement. In
the beginning of the film, the politician is killed during the riots. As the
story about the investigation of the case develops, seemingly spontane-
ous violence of the right-wing extremists is exposed as carefully planned.
The executors are, in fact, political agents instrumentalized by the
government and high-ranking military officials who understand social-
ism as “mildew” destroying the unity of the national body. There are
violent crowds but in this discourse they are manipulated by authoritar-
ian structures.
Gavras’s position could be subsumed under the umbrella ontology of
the Left, with the emphasis on the strong critique of nationalism. In the
story, lumpenproletariat and madmen act as direct agents of evil. On the
combined basis of unofficial political legitimization, military and police
training, and a mandate from the government, they execute violence,
380 Chapter 6

ultimately helping to procreate the inequalities of power in an unjust

order that could otherwise be changed. According to the ontology of the
Left, social change would reduce the causes of violence, but the movie
shows it does not happen. The question stemming from its portrayal of
events puts challenges to the probing of penal policy on empirical terrain.
Z conveys a universal message, but its strong social and historical rooted-
ness—the film is arguably a literal description of events in Greece from
the early 1960s, namely the assassination of Grigoris Lambrakis—tells a
message of its own. It is hard to cure evil if concrete societies are divided.
Perhaps social change would cut down evil, but what is the use if there is
no real chance for consensus, since in existing societies economic, ideo-
logical, political, religious, and cultural divides are deep and entrenched.
In Gavras’s perspective, societal evil is perhaps essentially different than
a natural one. It is much worse. The question for politicians and policy
makers of all sorts is: what can be done if “socialism” is “mildew” for one
political side, and cure for the other, that is, if the strong political divides
persist not only in then and today’s Spain, Greece, and perhaps Croatia,
with “red” and “black” historical and ideological divide, entrenched in
family histories, but in the West in general?
Even if it opens some hard questions for politics in the real word—or
perhaps because it does—Z shows us that the world of film sometimes
offers rich and highly stimulating insight into the empirical terrain of
contemporary politics. The medium of film, however, also offers clear-cut
ontological exercises that speculatively probe into nature of violent evil. I
limit this section again to three illustrative examples. One sees evil as a
consequence of oppressive authority structures. The second sees evil as
the only way to fight evil. The final one simply sees people as evil and
posits that society cannot do much about it. These themes are by now
familiar but the accents are different, offering new challenges and intri-
guing questions.
The action of Michael Haneke’s film The White Ribbon takes place in a
small German protestant village where different and inexplicable acts of
violence take place. The trap is set for the doctor: a stretched wire makes
him fall from his horse and, consequently, he is badly injured. The pas-
tor’s budgerigar is impaled, and the baron’s son is kidnapped and badly
beaten. It is suggested that children are responsible for the evil deeds but
not as authentic small villains like in Golding or Houellebecq. Instead,
their violence functions as a symptom. Haneke’s point could be that chil-
dren have reacted to the violence of the structures of authority. The pas-
tor constantly sermonizes on guilt and performs harsh punishment on
children for the smallest offences. 9 The doctor on his part is the expert on
sexual violence. He rapes his daughter and abuses his maid, who was his
mistress even when his late wife was alive. The baron, the economic ruler
of the village, treats his workforce badly. They are at constant risk of
arbitrary sacking. The message is that violence comes from the “hidden”
 Punishment and Fiction 381

violence of societal structures: religion, family, and economy. Since re-

pression produces violence, it is a bad recipe for curbing violence. Simi-
larly to Haneke’s Caché, where this relationship is directly signified in the
title, violence on a personal level appears only as a reaction to prior
hidden violence. Since it ends with the beginning of the First World War,
Haneke’s story also serves as a political metaphor. The oppressed author-
itarian generation is the one that later provided the popular terrain for
the legitimization of National Socialism and finally for the horrors of the
Second World War.
Haneke’s ontology, as we can see, is much richer than Gorky’s story
on the limited socioeconomic roots of violence. Can any penal policy cure
the evils that come from deeply entrenched structures of Western soci-
eties? This is the question coming from this fictional discourse, while the
opposite ontology, opening another set of questions, is displayed in Sam
Peckinpah’s Straw Dogs from the early 1970s, yet another memorable film
on violence. The poet from Suddenly, Last Summer is here replaced with a
scientist who is brought to accept his violent nature. The role of David, a
talented mathematician, is played by Dustin Hoffman. Endowed with a
habitus of an inhibited, stereotypic “nerd” with big pair of glasses, David
symbolizes politeness and civilization. He arrives in a village in Cornwall
with his wife, to work on his mathematical equations in the peace of her
picturesque birthplace. Soon after local bullies perceive his infirmity, vio-
lent evil arises. First his cat is killed, and then his wife is raped (in a
controversial scene with elements of masochistic enjoyment). As he de-
fends the village idiot from the drunken mob, a final massacre ensues in
which David emerges as victorious. Pushed to the edge, his violent na-
ture comes to surface and he successfully defends himself, his house, and
his family. One of the possible interpretive points is that violence can
only be constrained by counterviolence, not by talk, deliberation, or nice
manners. Violence, a natural force, understands only the language of
violence. In this animalistic ontology, there is no higher just instance that
would care. 10 Combined with liberal politics, the outcome is bleak: the
film has politeness going on until the crisis, when older forces come into
play, physis replacing the fragile nomos of civilization.
Since people have to fend for themselves, it seems that politically
controlled repression to prevent violence and retribution for violent acts
could be allowed in this seemingly pessimistic framework, as a way of
political intervention in the natural order of things. The question of this
discourse is, then, how far repressive punishment as evil on its own may
be used to fight and constrain evil. The decades behind us provided a
controversial example: US foreign policy and military operations in re-
cent times throughout the world have been led with Peckinpah’s elemen-
tary precept, literally dressed in the discourse of evil. The State of the
Union presidential addresses employed the imagery of danger and dark-
ness, of evil out there, and used military actions as political metaphors for
382 Chapter 6

American unity. 11 However, our theme here is not the US foreign policy,
which is by many readily subsumed under Haneke’s chief trope of re-
pression producing “evil” (which is then personalized and punished, to
clear one’s guilty consciousness and to induce political legitimization),
but the ontological implications of this discourse for penal policy and
punishment. May political structures fight fire with fire? The answer
could be that, while a social democratic ideal of rehabilitation might be
naïve, the liberal framework allows for conditioned repression as a neces-
sary deterrent. Peckinpah’s possible point is also that if David had been
firmer and more resolved, then the apotheosis of violence wouldn’t have
taken place at all: firm rules and resolute actions may sometimes be effec-
tive and prevent evil from escalating. Scientists solve problems, as violent
people sometimes do; poets create—or observe creation and destruction.
It is the discourse of the jungle employed by violent actors to legitimize
their actions, a theme we return to in chapter 8.
That brings us to another discursive example in this section, where
Peckinpah’s violent animals are endowed with free will and conscious-
ness. Since they are turned into morally and politically autonomous sub-
jects, the dire penal consequences are justified. In Lars von Trier’s early
2000s Dogville, evildoers are more than dogs. The simple scenery of the
film (as if it were a theater play) strengthens the bare-boned ontological
message of the plot that tells a story about the roots of evil. Grace, played
by Nicole Kidman, escapes from gangsters and hides in a small American
town. She starts doing good deeds to be accepted by the town council as a
permanent resident. Life looks happy until the police seek Grace twice.
The townfolk feel endangered and Grace is therefore requested to do
more work for the residents to redeem herself. She soon turns into a
victim of oppression. She is exploited, sexually abused, and raped. Final-
ly, Grace becomes a slave in chains. Seemingly caring town intellectual
Tom makes a sentimental advance to her and is rejected. This hypocritical
coward then becomes the leader of an evil flock of torturers and exploit-
ers, “nobly” opting for her detention instead of rape. When gangsters
finally arrive, it turns out that the mob leader is Grace’s father. Gangsters
kill all the residents in what seems to be a just retribution. The town is
burned and Grace kills Tom herself.
One of the possible readings is the following: Almost vulgar Christian
symbolism is at work, as in Golding’s story. “Grace” is here to give a
chance, in escape from her Lord Father, who wisely knows that people
have to be constrained by repression and harsh laws and that they have
to fear violence in order not to inflict it one upon another. The more
Grace gives to people, the more she is abused, finally learning about true
human nature. Since after all they have done, they show no remorse, she
accepts her father’s vengeance in a recognizable Old Testament style. The
city is burned like Sodom and Gomorrah and the only being that survives
is the town’s dog—“Moses.” Alongside this biblical layer, there is also an
 Punishment and Fiction 383

ontology of evil at work. In a text on von Trier’s film, Andrea Brighenti in

that sense remarks: “The presence of Grace turns out to be a significant
and even abundant economic resource—sexual resources included. The
ragged, ignorant inhabitants of Dogville transform themselves into slave-
holders. Paradoxically, then, it is not because they are poor that they
begin to do bad deeds—as the philanthropist argues—but because they
are no longer as poor as they used to be” (Brighenti 2006, 106).
Unlike in Gorky and Haneke, evil does not come from society and it
can even thrive in an affluent society. Ontologically postulated freedom
implies a moral and penal responsibility for violent evildoers. In that
perspective, social state paternalism and belief in curing evils through
economic and social progress turns out to be misguided and arrogant.
Lars von Trier read in that way is anti–Loïc Wacquant. Or, as the socialist
view of the ills of society brings the social state, the Old Testament view
of human nature brings the Old Testament justice, Jonah excluded since
Dogville is not Nineveh (and Grace certainly isn’t Lot’s wife turning back
to the city destroyed by fire and brimstone).

ONTOLOGY OF AN ORANGE: POLITICAL SUBJECT, PENAL POLICY,

AND POLITICAL SCIENCE LESSONS FROM FICTION

Essential pictures of man, society, evil, and crime, contained in presented

fictional discourses, are by now reasonably clear, while some more nu-
anced twists, combinations, and contextual variations of them I had to
put aside due to a shortage of space. 12 As the chapter approaches its end,
let us sum up the ontologies and for a moment speculate on the rudimen-
tary penal policy prescriptions that they offer. If society produces vio-
lence, then social reform or even revolution should be the best policy to
prevent crime and cut down on violence in general. An alternative econo-
my and egalitarian society with equal opportunities for all will ultimately
eradicate crime. Penal policy could be but a relic of bourgeois society
(Gorky). However, if the demons of human nature are the problem, then
perhaps there is a need for repressive order. The government resorts to
utilitarian repression and morally just retribution to control human na-
ture and keep it from committing greater violence. Moral expiation and
the rehabilitation of individuals in carceral institutions could be viable
alternatives (Dostoyevsky).
Finally, both nature and society could be flawed but not irrevocably
fixed: one might tinker with human nature in an early stage to prevent
crime and insert it in an ideal peaceful society, but the price could be a bit
totalitarian. The best penal policy in that perspective would be the one
that would not exist, that is, the one that would work via alternative
preventive mechanisms of early behavioral therapy, an egalitarian social
structure, and ideological work (Huxley). If collectively prescribed and
384 Chapter 6

tightly controlled early childhood altering of behavior and biochemical

therapies, literal or metaphorical, are simply too much for liberal-demo-
cratic common sense, then we are faced at least with a difficult task of
changing economy, religion, family structure, and gender roles, as the
more ambitious story of multifaceted and multistructural repression that
produces violence suggests. Penal policy could be but a sacrificial ritual
that legitimizes the oppressive order and induces guilt without changing
things: the idea is not to punish but to dismantle patriarchate and capital-
ist economy (Haneke) and authoritarian governing structures brought to
light in discourse (Gavras).
If human nature is, on the other hand, simply bad and hardly change-
able—destructively chaotic or chaotically destructive (Bulgakov), prone
to aggression when left to itself (Golding), and sometimes brutal and
sadistic (Houellebecq)—the idea is to keep it repressed by authority, pun-
ish transgression, and control it by rules. Perhaps there is no individual
blame, but the firm stance against violence on the level of the struggling
individual who does not want to become a victim (Peckinpah) or penal
policy on the level of government is the only means to keep civilization
going and preserve the community (de Saint-Exupéry). As for the twists
and combos, sometimes the nature of things induces paralyzing or self-
destructive horror beyond punishment, sometimes it is accepted as a
character-building fight or enjoyed as a game where violence is the me-
dium that keeps nature fit (Mankiewicz, Carnahan, Twohy). This re-
sponse, individual or collective, needs to be quite firm (Peckinpah), and if
there is free will to be good or bad, then retribution, administered by a
higher authority, is just, including capital punishment (von Trier).
And what is the relation of this material with the ideological catego-
ries we have employed? If we bracket the nuances and abstract a bit
further, repressing some more details, we are, on the one hand, faced
with the story of criminal motives induced by social structures and group
divides, spawning crime and violence, with the postulated paradoxical
possibility of a general political will breaking the cage of injustice. Vio-
lence and crime are a symptom of societal ills, and penal policy, however
it might be conceived, is at best only a temporary necessary evil (the
Left). On the other hand, motives are natural and stubborn, and society
must, among other strategies, work against them repressively: violence
and evildoing are almost human instincts that cannot be written off but
only curbed by repression (the Right). Finally, there is, if we switch to the
broadest historical perspective, a hint of future society without violence
and crime at the putative end of history.
There is, on the other side of ideology, a perspective of eternal return
and historical cycles where human nature repeats itself in the never-
ending spiral of sins, crimes, and punishments. On the one hand, penal
policy disappears. It only adds injustices to the already existing ones,
driving people into particular violence. On the other, it is essential. On
 Punishment and Fiction 385

the one hand, reform and rehabilitation are the future. On the other,
reform and rehabilitation are impossible, without stern and just punish-
ment. We are thus back with Schmitt, that is, with anthropology—or
ontology of political subject—that shapes political theory and gives pre-
scriptions for penal policy. But what is the truth in this fictional cross-
word puzzle? If not by mere ideological preferences inscrutable as prefer-
ences for ice cream flavor or contingencies of family histories having to
do with “strict father” or “nurturant parent” models famously con-
structed by cognitive linguist George Lakoff, how do we decide whether
we should accept the Right or the Left story (if “or” is warranted at all)?
This chapter does not come out of the fictional maze and provide such
an answer, since its scope, methodology, and presuppositions prevent it
from doing so, but it can draw the path toward a possible exit. This is the
place where key concepts reenter the picture. The aphorism “ontology
first, political theory second” served as a basis for this fictional research.
This means there is some fundamental picture of human affairs—in this
case, the picture of causes of evildoing and harm to others—that sets the
stage for normative political theory and penal policy design. Fiction is a
medium that amplifies and brings to our attention different ontological
pictures of reality, or different segments and congruent aspects of same
reality—a reality politics has to deal with. In that sense both ontology and
fiction should be analyzed as political material. However, if they are not
only politics—political projections that have no liaison with reality or that
can simply change reality as one wishes since everything in society is
anyway postulated as the outcome of ultimately arbitrary power rela-
tions and politics—they are political in yet another sense or two.
First, they are potentially infused with ideological bends and biases,
often subtle and ingenious. These may not only reflect personal frustra-
tions or dispositions of authors’ character but also political interests, gen-
der roles and class positions, ethnic and cultural backgrounds, and the
other usual variables that tend to play a role in the games of power and
identity politics. Second, as the historical chapter suggested, societies,
levels of violence, and its understandings change, as Norbert Elias
pointed out long ago and Steven Pinker reminded us in his controversial
bestseller. Politics plays role in a world that is not fixed, and however
slow changing they may be, ontologies and fictions are, sub specie aeternit-
atis, part of this political game. People on the Left may speak of economic
structures but will not stop believing in political action that could change
them. That is perhaps the meaning of Brecht’s harsh designation of apo-
litical people as “imbeciles” (Schwachsinnige) who are, because of their
political illiteracy and disinterestedness, ultimately responsible for soci-
etal evils, which is one of the readings of Lang’s film from the beginning
of the chapter. In the sense sketched in this paragraph, the remark is spot
on. Politics changes and influences almost everything, but one must not
forget, contra Brecht, that it may prove impotent and crash on the rocks
386 Chapter 6

of social reality or, worse, bring forth a totalitarian mass destruction in-
stead of a peaceful utopia.
How does this help to design good penal policy, the one that is just to
both victims and perpetrators, that reduces crime, and that is not costly in
economic, social, and political terms? The conventional picture that I
have drawn, the one of fictional ontologies as political and politically
relevant speculations on penal reality, has only one possible answer. The
reality check, the exit from our maze, lies in empirical work, reflections
from practice, and historical and comparative penal policy research, for
which the maze offers wonderfully rich heuristics of ideas, models, spec-
ulations, and details. As such, this exit is here out of bounds. Two fiction-
al reminders—in fact, two letters—pulled from the analyzed material will
suffice as useful guideposts. First, the letter M. What is valid for fiction,
as a simplification of reality, a fortiori is valid for political science research
on penal policy—as in Lang’s film, the truth is hard to find and the
problems are complex; they involve lots of actors, positions, and stories,
and probably do not offer simple solutions. This may sound like worn-
out phrasing, but I think it is so. Second, the letter Z. Research is one
thing, but political struggles, works of the practitioners and activists on
the terrain are another thing. Gavras’s classic on political violence re-
minds us that change may be very difficult. It is a wholly different game
than theoretical penal policy design—a game, however, in which one
must not downplay the role of science, including political science, a disci-
pline contested and as interesting as ever.
The last unresolved issue, then, is the one of the political subject, an
essential concept of the above-mentioned political science enterprise.
Introducing our concepts, we have posited politics permeating widely
conceptualized penal policy that makes sense from the vantage point of
my native discipline, political science. Authorized choice, accepted and
implemented programs, and courses of action on different institutional
levels (local, state, regional, global) involve struggle for power, factions,
interests, political discourses, and, generally speaking, what Karl Mann-
heim long ago called irrational maneuvering space (irationale Spielraum)
as a specific difference of politics in comparison to bureaucracy. The
definition is wide in the sense that it conceptually encompasses not just
penological discourses, institutions, and subjects but also the wider polit-
ico-institutional complex through which society shapes, implements, and
rationalizes its penal law. Thus it includes what is sometimes labeled
criminal justice policy making, that is, criminal justice politics. This justifies
using the concept of the political subject, especially in democratic times
such as ours; all the potential clients, subjects, and taxpayers—those who
ultimately finance the penal system, civil servants, private entrepreneurs,
and so on involved in penal policy—are at the same time citizens, the
small political nodes of potentially active political power that together
shape penal policy. In other words, homo penalis is at the same time homo
 Punishment and Fiction 387

politicus. Following Rousseau’s idealistic duality between economic and

political subjects, the one who punishes and the one who is punished is at
the same time the one who decides.
The political ontologies analyzed show how things might work and
suggest how to build politics and policy at least on the level “as if,”
before the real-world checking, shading, and blending of their partial
truths or lies. But on the same level, they are not just “diagnoses” on the
causes of crime and penal subjects. They are also political statements,
projections, and blueprints for political action, for political subjects who,
ideally speaking, democratically influence and design that penal policy
that then seizes them as penal subjects on the other side of the coin
comprising penal and political ontologies as its head and tails. And, to be
sure, this area of penal politics, of intermingled penal and political sub-
jectivities, can hardly be more important. It is the area that, under the
threat of sanctions, sets the rules for civil life and peaceful interaction; the
area of state’s monopoly of force that still remains, practically speaking, a
politico-theoretical fiction; the area of potential loss of liberty, carceral
inflations, and massive prison populations not just in the United States;
and the area where the state (at least sometimes and somewhere) takes
one’s life within law, not to speak of political violence on the outside of
its formal shackles.
As fiction suggests, it is, at the same time, the area of large possibil-
ities, ideological battles, and numerous constraints. There is a lot to do
here beyond heuristics, beyond fiction. But I am not driving the probing
of fictional discourses to the finish line in the overconfident sphere of
possibilities, dealing with discourses that open new spaces and possibil-
ities to transcend violence and punishment. Since ontology came first in
our equation, I am offering a potentially useful pessimistic reflection on
societal and political limitations of our epoch, using the same method as
before (with all the caveats still working, as in the rest of the text). The
reader may remember that, more than to socialism (and fascism), I have
referred to the liberal-democratic framework that is still a living political
and economic reality for most of us in Europe and generally in the West.
The fictional speculation on its production of violent evil and the pos-
sibilities to tackle it is, then, the right way to close the main part of the
chapter, warning policy designers to be careful and look out for dangers.
The hardest fictional ordeal comes at the end: there is yet one film—as
cold, misanthropic, and pessimistic as Golding—that builds on literature
and brings our two explored mediums, literature and film, together.
“An Orange from Hell” was the Croatian translation, or more literally
“A Hellish Orange” (Paklena naranča). Unlike Huxley’s Island it shows
how society and reform can be put together but not as domains for re-
form but as breeding grounds of disaster. Utopia becomes dystopia. Ku-
brick’s A Clockwork Orange from the beginning of the 1970s is a dystopia
that in the present time functions as a deeply pessimistic picture of con-
388 Chapter 6

temporary liberal-democratic societies. 13 It is also a careful fictional exer-

cise in the analysis of the ontology of violent evil. The plot is still worth a
short recounting.
The main character, Alex, is the evil leader of the gang of wanton
youth, not deprived in any obvious way. Dystopian society is affluent
and our young evildoers come from affluent families. They have the
opportunity to school themselves; they have all the free time and all the
possibilities for nonviolent self-fulfillment. However, they beat, kill, and
rape their fellow citizens. Betrayed by his gang comembers (“droogs”),
Alex gets fourteen years in state prison for murder. His punishment
brings no moral advance. When the Bible is read in prison, the prisoners
burp, thus reminding the viewer of Huxley’s observations on the impo-
tence of moral education and Western penal policies. Alex is then sub-
jected to the Ludovico technique, an experimental behavioral treatment
creating a conditional reflex that makes subject physically sick when his
first violent impulse awakens. When the effectiveness of the procedure is
demonstrated, the minister of the interior is proud. The priest (the one
who had ineffectively read the Bible in prison) objects to the technique on
the grounds that it eliminates free will, somewhat similarly to the ideas
presented in von Trier’s Dogville and C. S. Lewis’s critique of penology.
Official response to the priest (and to Lewis) is that the government and
the people are not interested in the “subtleties of higher ethics” but that
they simply want to solve the problem of crime effectively, cut it down,
and reduce the prison population.
The Ludovico treatment is deeply illiberal—and effective, like Hux-
ley’s Palanese procedures. After the treatment, Alex finds it impossible to
be violent and as such he becomes a victim of those who had feared him
and suffered violence from his hands. Since during the treatment Alex
unfortunately listened to the grandiose music of Ludwig van Beethoven,
the composer he adores, he also developed behavioral aversion to the
music of his earlier aesthetic enjoyment. Alex is then used as a political
weapon by the opposition, accusing the government of being totalitarian.
By means of Beethoven’s music, he is forced to jump through a window
and then portrayed in the press as a victim of the government’s oppres-
sion. The minister of the interior provides him a reverse treatment that
removes the aversion to violence and he receives a well-paid sinecure, in
exchange for silence about his case and not pressing charges. Alex’s evil
grimace returns. He is filled with joy, and in the end he claims that he
“was cured, all right.”
The film offers anthropological, societal, and political pessimism in
portraying contours of evil in contemporary societies. Man is evil and
does evil when opportunity arises; Alex was violent, but all of his former
victims are also violent when they encounter him. The homeless guy,
whom Alex and his droogs beat up, attacks Alex when he recognizes him
and sees that he is helpless. Alex’s former droogs now work in the police;
 Punishment and Fiction 389

they also beat and torture him to pay him back for beating and domina-
tion when he was the leader of the group; his former bourgeois victims
torture him and use him for political purposes. There is no remorse and
no forgiveness in A Clockwork Orange, and society and politics do not
help. Alex’s family is alienated, his parents are afraid of him; social work-
ers and probation officers are mostly impotent when it comes to leading
him to the right track. 14 Classical penal policy cannot reform Alex, while
the new scientific one, aside from being illiberal, makes mistakes. In A
Clockwork Orange, even science is not to be trusted. Cynical liberal-demo-
cratic politics is not interested in following a rational policy course but
only in staying in power, while sensationalist media seeking scandals go
back and forth from amplifying the problem of violence and praising the
program to grisly stories on abuse of human rights and totalitarian intru-
sions of the government. On the top stands the culture of blasé bourgeois
society, the one that should provide a societal basis for parliamentary
liberal-democratic politics: the homes of the rich are burdened with deca-
dence of clothing, strange habiti of their owners, phallic statues, and
kitschy interior design. Society and politics are disastrous and that does
not help the burden of human nature.
The final hard question for elementary penal policy design goes: If
evil is a cumulative product of our societies’ different institutions and
human nature, what can be done by dysfunctional liberal-democratic pol-
itics and its political theory? If things are that bad, should one (if she does
not want to summon the cultural pessimism of Mel Gibson’s Apocalypto)
recall Leo Strauss’s (in)famous remark that modern political science fid-
dles while Rome burns, but is excused, since it does not know that Rome
burns and it does not know that it fiddles? What is to be done if political
science, political theory, and penal policy design, constrained in the nar-
row empirical and normative framework of the given situation, work in a
structural straightjacket? In the area of violence and punishment, some
authors claim that the conservative approach in politics, the one that
lacks the societal vision and constructive political programs—like the
implicitly conservative political science that ideologically produces exist-
ing “burning” structures—has produced only further decadence of soci-
ety. As one author put it:
Lacking a “vision thing” with which to imagine the future and direct
society the imagination of the political elite (indeed of western culture
more generally) has withered and where there was previously a sense
of possibilities and improvement, today’s energy is put into attempts at
damage limitation and harm reduction. Within this more limited mind-
set the tendency is to shift one’s eyes from the horizon and onto the
“gutter” to discover ad nauseam the dangers that lurk there. (Waiton
2009, 372)
390 Chapter 6

Should the political scientists, political theorists, analyzers of fictional

ontologies, speculative penal policy designers and practitioners, and all
those concerned with violence and interested in some sort of good pun-
ishment (rational, just, quick, sharp, nonexistent since unnecessary) be-
lieve him? Once more, I cannot answer that question here. The point was
again to provide an initial overview, partial and idiosyncratic but princi-
pally open to additions and more importantly, for revisions. It is digested
into a table with presented cases not following any logical development,
political or aesthetic importance, but formal alphabetic order (see table
6.1), together with the two additional cases that in a here-final but cer-
tainly not ultimate twist replace general pessimism with a glimpse at
national history and conflict between punishments, foreshadowing chap-
ter 8, where earthly injustices of punishment call religious spirits to ques-
tion the whole of this world as hidden harmony, botched design, or an
agnostic fortuity.

TUNING TO THE HISTORY OF THE FUTURE: THE PROSPECTIVE

CYCLES OF PUNISHMENT IN THE CITY OF GOD

To finally add a juicy chunk of national and local folklore to this muster
of fiction, violence, and punishment: Ivo Brešan, a Croatian playwright,
novelist, and scriptwriter, wrote a novel in 2013 that satirically projected
the country’s future in half a century. The compound narrative brings
together politics and punishment in the genre of a dystopian history of
the future. Continuing the mini-case-study from the chapter on power,
the important bit of context is that Croatia is a country with a strong
Catholic tradition and heavy influence of the Catholic Church, with the
history both of a fascist and a communist regime in the twentieth centu-
ry—the Ustaša Nazi satellite state 1941–1945 and the Communist Yugo-
slavia 1945–1990—while the 1990s brought the reaffirmation of Catholi-
cism and tradition associated with the semiauthoritarian regime that
functioned in the context of state formation and war for independence
but then dissolved after the death of the first president. After the 2000
elections, Croatia started its integration in the European political and
economic space and entered the European Union in 2013. (From the
bigger and better-known countries that figure more prominently in
world history, the situation has some similarities with Spain and the
ideological coordinates of Left and Right employed in this chapter func-
tion similarly.)
Croatia in Brešan’s AD 2053: The State of God offers quite a drama of
violence and punishment, associated with ideology and classical scenar-
ios of totalitarian buildup, and operating with masses of expandable peo-
ple. 15 (The political vicissitudes associated with the demographic decline
that is more visible these days is somehow at odds with such classic
 Punishment and Fiction 391

dystopian projections.) The final scene, taking place after a catastrophic

finale of the political cycle, is portrayed through the events of my native
Šibenik. It has the beautiful St. James Cathedral, constructed by Giorgio
da Sebenico (Juraj Dalmatinac) and Niccolò Fiorentino (Nikola Firenti-
nac) in the fifteenth and sixteenth centuries, looking down on the Bruegel
and Bosch like scenes as a consequence of people’s justice. It is the lyrical
description of the chaotic pogrom of punishment:
The scenes of horror appeared before him. He looked at them with
complete indifference. The city rabble dragged the benumbed clones
around, molesting them, throwing them into the carts like logs, and
driving them somewhere to the seafront. The others escorted the living,
obviously the former power-holders, beat them, spit on them, pulled
their beards, and then, on the City Square, soaked them with gasoline
and burned them, or hanged them on the candelabra which were
stuffed with corpses like Christmas trees decorated with baubles. The
homeless threw the living corpses from the carts into the sea. There
were already so many on the sea surface that they have covered the
whole Šibenik Gulf. Since the light borin blew from the land, they were
carried farther from the shore on the waves and then scattered off in all
directions. The scene was eerie. The half dead bodies floating like life-
less large fish, slowly carried by the current. (Brešan 2013, 390)
The dystopian drama about the burden of the past projected into the
future, flavored with some incest and sadomasochistic séances that cost
the dictator his life, with the development of events leading to this scene,
is almost entirely about punishment. Croatia is part of the future Euro-
pean federation called the Federation of European States (FES), where
liberals and social democrats compete in the political arena with neocom-
munists and neofascists. The Croatian Christian-Social Party unexpected-
ly wins the election against the establishment due to high abstinence of
voters, and proceeds to abolish political pluralism and establish dictator-
ship under the leader (Jesuit) Teo Torlak. The country is isolated in the
FES, excluded from the global economy and the Internet. The recogniz-
able historical scenario unfolds with the common places of dystopian
literature, such as burning of the books, totalitarian police inspections,
standardized by Orwell’s 1984 and Bradbury’s Fahrenheit 451 after the
Second World War. There is also corruption, clandestine deposition of
toxic waste from Europe for money, and so on, which all lead to indis-
criminate people’s punishment in the style of St. Bartholomew’s Night
massacre. The plot follows tribulations of a politically divided family
(probably a typical Croatian political and literary theme): the numerous
siblings each fare with the circumstances differently in a convoluted plot,
involving incest and what not, and which I dare not unfold here in any
detail.
 392
Author: Not Ontology of evil: Ontology of political Speculative penal policy Ideological
as a person, What is the cause of subject: Is man good design: How should classifica-
but as a evil? or bad? society react to evildoing? tion of a
shorthand discourse
for a
discourse
Brešan Cycles of politics in Bad in collective Various methods are equally Left by
history situations and political destructive and serve various tradition,
perturbations political cruelties or Right by
totalitarian lunacies ontology; it is
(not only) a
Croatian thing
Bulgakov Violent and chaotic Bad, but there is a Cynical; does not prescribe Right

Chapter 6
nature; society and funny side to it
politics help to amplify
it
Carnahan Struggle for survival Bad to survive Fight with reason and Right
authority against threats;
some repression is needed
de Saint- Violence comes from Bad; tends to fall apart Authority, rules, and Right
Exupéry the lack of order, i.e., without discipline punishment
the lack of will
Dostoyevsky Human nature, its Unsuitable for Reactionary framework Right
psychology, and inner phalanstery, chaotic, keeps the moral struggles
demons sinful, and sometimes going: penal policy is part of
violent the expiation process
Eagleton Economy, society, “Morally hybrid” Thorough reform of unjust Left
political institutions creature, but society structures; penal policy could
 tends to make him be one of the ideological
really bad apparatuses that procreates
capitalist order
Gavras Violence is produced Good; violence stems Political action for economic Left
by militaristic fascists, from societal structure, and social change; penal
their capitalist fascist politics, and policy is a part of the
sponsors, and their manipulation of the repressive political
nationalist agents proletariat constellation
Gilroy Transposition of reality Amoral and violent Media policies necessary to Right
to the picture of when it suits his goals: prevent manipulations and
violence “the nightcrawler” tabloidization of violence

Punishment and Fiction

Golding Sinful human nature Bad; sinful to the core, Authority is necessary: Right
where one can see civilized society curbs
“the darkness of violence
human heart”
Gorky Economy, society; Good, when not Economic and social change; Left
brutality of depraved by society political revolution; penal
unconstrained policy is mostly irrelevant
capitalism
Haneke Violence is produced Good, unless he lives Unspecified thorough reform, Left
by prior hidden in society, which perhaps fueled by cathartic
violence of multiple makes him violent insight into societal
societal structures hypocrisy; penal policy is only
(economy, religion, a part of unjust repression
patriarchal family)
Houellebecq Violent nature, which Bad; violent, obeys Repression and control of Right
humans share with hierarchy, and works violent impulses; only science

393
 394
other (predatory) in packs; stronger can bring ontological change
animals enjoy torturing the and radically change
weaker: it is natural decadent Western societies
Huxley Peter Pans and Most are good, but Early behavioral therapy and Left, but with
Muscle Men, some are really bad, utopian social engineering hints of a
characters born with a and cause all the rightist
predisposition for trouble ontology
violence; society and
politics certainly do
help
Kubrick Alienation, boredom, Bad and enjoys it; Cynical; cold analysis does Ambiguous:
and cynical liberal- unsuitable for classical not prescribe ideology does
democratic politics penal treatment not help

Chapter 6
produce violence
Lang Violent natures and Bad, sometimes Repression or rehabilitation: Ambiguous:
violent structures compulsively violent diagnostics and prescription violent
are ambivalent natures might
be uncured
patients or
neglected
children
Mankiewicz Cruelty of nature Bad, selfish, and Fight cruelty of nature with Right
instrumental reason and civilization;
repression is part of cruelty
Melville The conflict between Good and bad in a Wait for the last assizes and Right
political goals and Manichean distribution enjoy the beauty of suffering
human morality of roles caused by moral agents
 repressed by earthly duties
(“angels that hang”)
Oppenheimer Political purge and Bad especially when Dealing with the past through Left
local gangsters politics provides the fictional therapy; impunity
opportunity and ordinary men

Punishment and Fiction

Peckinpah Violence is what bad Bad; violent, Strong retribution: firm Right
people do when especially when approach helps general
allowed perceives weakness prevention
Stone Transposition of the Extremely violent for Beat the bastards with low Right
picture of violence to fun: “natural-born media pomp
reality as the role killers”
model
Twohy Carnage of nature Badass to survive Outfight monsters in a Right
struggle of the fittest
Von Trier Violence comes from Bad; especially Retribution and capital Right
evil and sinful nature malicious toward the punishment for the malignant
powerless evildoers

395
396 Chapter 6

The interesting twist is that the real power behind the political regime is
the one of the Church, which actually runs the country behind the puppet
dictator. This leads us to the ideas on punishment present in the work,
which make it interesting for us. The usual modern penal process of
imprisonment is substituted by a technology of soul, a prominently Fou-
cauldian motif evoking chapter 4. Instead of punishment, the smaller
infractions such as nonattendance of Mass, which leads people to de-
nounce each other and do similar immoral things, are monitored. The
transgressors are subjected to the work of the “moral-legal-medical coun-
cil,” which ultimately leads to a brainwashing therapy in hidden institu-
tions, as in some C. S. Lewis nightmare: “Prisons belong to history. The
court does not deal with the body, but with the soul of the suspect,”
writes Brešan in Foucauldian tones (Brešan 2013, 123). The penal appara-
tus deals with various moral and sexual transgressions, including swear-
ing, adultery, and prostitution, often on the basis of anonymous denunci-
ations deposited in the black boxes in the churches. A small number of
those who cannot be programmed differently—as the excerpt already
suggested, there are chips and clones also—are exterminated and in Fou-
cauldian terms, the strange combination of sovereign power embodied in
the dictator, disciplinary police action, and governmentality of souls is
combined with the biopolitics of the flock and extermination of incorri-
gible black sheep who cannot become useful zombies for a totalitarian
theocracy.
This further combines with bizarre local practices of punishment, in-
spired by Nordic legends imported to the Adriatic islands by the old
seamen, which are activated in pockets of resistance and local conflicts of
the old revitalized communists and fascists, the latter establishing Pasoli-
ni’s Salo-like eccentric tyrannies and professing applied Nietzscheanism
(in fact, Sadism with capital “S”) against the weak. With a big, still-wig-
gling fish attached to the back of his head, the convict is constrained and
put into the shallow waters. Then one of the circling seagulls swoops
down from the heavens to catch the fish and ruptures the skull of the
condemned with its beak: it is a sort of a maritime ordeal by bird, leaving
the convict to the will of “God and nature,” that is to be applied where
there is “neither government nor law,” and that can theoretically spare
the convict (although following Benjamin, it seems that fate is structural-
ly constrained and has a good inducement to act “imperiously” in such a
setting involving seagulls and a wiggling fish). 16 Rebel islanders are, in a
technologically boosted act of a higher sovereign power, punished by the
weapons of mass destruction, which is presented by the regime as God’s
act, a miracle of punishment of the sinners in the Old Testament style.
There are also public punishments of disgrace, such as walking with a
sign, cleaning toilets, and public beating, while the parallel and more
extreme religious orders who ignite the masses follow this by severely
punishing the transgressors of God’s laws, especially women as the new
 Punishment and Fiction 397

witches of sin, earning labels such as Paklena bludnica (“Hell’s harlot”)

(Brešan 2013, 264). The unlucky are lynched as they are pulled out from
prisons by moral vigilantes, which is tolerated by the regime, and the
Savonarola’s Florence-like atmosphere is further developed, since even
the plague is brought by the rats, which is, of course, framed as God’s
punishment leading to punishments for transgressions. 17
The book, in other words, offers an eclectic series of ideas on punish-
ment, ranging from the older technology of reforming criminals, with the
idea of the “energy of their consciousness redirected from personal to
public benefit,” to their burning at the stake as “traditional punishment
for anyone who hooked up with the Devil” (Brešan 2013, 301, 376). As
such, it beautifully illustrates the important Foucauldian points of chap-
ter 4 about the coexistence of the systems of power and forms of punish-
ment. Punishments stem from the dictator, army, and the police, from the
Church and its programs of moral education, reeducation and, if nothing
else works, liquidation in the camps co-run by the state, blessed and
equipped by the Church. There are also outbursts of popular punishment
and, where we began, an ultimate act of people’s justice that calls for a
new historical cycle, everything set in the context of economy, interests,
and foreign relations. The clones are dead, repressed people unleash the
destructive energy, burn fires, beat, kill, and torture anyone who had
privileges, restarting the cycle of punishment in which, as usual, “execu-
tioners will become victims, and the victims executioners” (Brešan 2013,
398, 404). The only one who transcends the worldly cycle of creation,
destruction, violence, and punishment is the main character, a priest, Jure
Loko. He declines the opportunity to become the new national archbish-
op and escapes the cycle as a saint retreating from the Church and the
world, observing the simple wooden crucifix as perfectly embodying the
idea of Christ’s sacrifice. In one conversation, a simple observation, simi-
lar to one that “staunch capitalists may be the best Marxists” by giving
rhythm to history, has Satan appear as god’s policeman doing God’s
penal work, punishing the souls astray.
A national history, albeit with its appealing eclecticism and recogniz-
able general motives, is one thing. To problematize human punishment
for political ends as such, in the context of (in)justice administered by the
punishment of destiny, is another thing. It offers a much more ambitious
theme than a convoluted family saga, worthy of the final section of this
chapter’s explorations of rich fictional discourses on violence and punish-
ment.
398 Chapter 6

THE PUNISHMENT OF PUNISHMENT AND THE LAST JUDGMENT:

BILLY BUD INSTEAD OF CONCLUSION

Billy Budd, a posthumously published manuscript by Herman Melville

that became a literary classic and got overinterpreted almost as Benja-
min’s text in political theory and humanities, is—the reader might not be
surprised—also a study on punishment. It is, first, historical, since the
pressed seamen did not enjoy the protection of the Magna Carta menu of
proto-liberalism and their desertion went with the risk of hanging. Navy
punishment policies, especially in war, were pretty strict from a contem-
porary Western point of view, as witnessed in the novella where the
beautiful sailor gets himself hanged. Second, it is a simple allegory set-
ting ideal characters against each other to say something on the big
themes of ethics, politics, rules of obedience, and the nature of punish-
ment. Evil and scheming Claggart, master-at-arms endowed more or less
only with platonic “Natural Depravity,” is highly envious of Billy Budd,
with whom he shares the deck of HMS called nothing less than Bellipo-
tent, combining force and beauty or perhaps war in one word. The beauty
is, in any case, all Billy Budd’s: he is a prime example of a “handsome
sailor,” “a fine specimen of the genus homo,” endowed with “as much
masculine beauty as one can expect anywhere to see,” and so on, but also
with “an occasional liability to a vocal defect.”
Good natured Budd is shocked by the lurid accusations of an evil
schemer. Not finding words for such an outrage, he resolves his “con-
vulsed tongue-tie” by punching Claggart. His hand is a punishment of
destiny for Claggart: Budd kills him with a single blow, earning a hang-
ing, since to strike dead an officer was not the best thing to do on a British
ship in war, whatever the context or intention. His perfect innocence is
not in question in the Almighty’s eyes and those of his fellow men, but
politics and war have their mundane policy requests: “At the Last As-
sizes it shall acquit. But how here?” Perhaps the most famous line, ut-
tered by Vere—the third person in the plot, the captain of the Bellipotent
and accidentally the only witness and judge of the incident—resolves the
dilemma without mercy: “Struck dead by an Angel of God! Yet the angel
must hang!” That it is how it happened, while the media politics of the
time presented it subsequently as a criminal attack on a poor petty offi-
cer.
Within the context of this treatise, Billy Budd may be read as a demon-
stration of conflict between the two modes of punishment. First, a natural
punishment of envy, spontaneous outburst of good against evil, right-
eous beauty punishing wickedness on the spot. This happens before and
without words as a currency of culture, and is set against the second
mode of punishment, the procedures of punishment in an institutional
setting, the worst ones administered during the war in the armed forces
where life is cheap anyway, and governed by such harsh vehicles as the
 Punishment and Fiction 399

Mutiny Act. The name of Vere, “starry” and gazing into distance but also
a righteous captain, connotes truth and sincerity. He does not need to
diminish the tragedy by distorting it, like the press, to make it fit the war
efforts. He is the one not ever doubting the decision, like Budd himself
who is too moral to be self-interested, to explain or complain. But the
resolution of conflict has a high price: the conscience of a human being
haunts the decision on punishment made by an empowered official. As
the citizen Kane will later utter his “rosebud,” lamenting the lost inno-
cence, so Vere dies providing the source for this echo, lamenting the
“fated boy”: “Billy Budd, Billy Budd.”
Since the author speaks affirmatively of the “doctrine of man’s Fall”
that is “now popularly ignored,” such personified Manichean opposition
of good and evil might be seen as a story of evil winning through politics,
but also, more mundanely, as a tragedy faced by all official decision
makers who, as exponents of utilitarian politics, always have to consider
particular cases in a wider context, and have to consider “consequences
of such clemency” in a setting where most sailors aren’t, so to say, hand-
some and virtuous. 18 Unlike Captain Ahab who was punished by destiny
that, to once more use the Benjamin’s convoluted phrase, has shown itself
imperiously in the form of a gigantic white sperm whale, Vere died carry-
ing out his master and commander duty. He succumbed to the conse-
quences of a naval clash with a French ship, with the revolutionary name
of—again nothing less than—Atheist (Athée).
It is the worldview that is the backbone of the discourses that we next
explore in the penultimate chapter before turning back to the more sub-
lime metaphysics. Those discourses appear under the label of science
called criminology.

NOTES

1. The material used for this chapter, around which the whole book has devel-
oped, has several prior versions that mostly grew and sometimes shrank through the
years. The initial version is the part of research made for my doctoral dissertation State
and Crime: Interpretive Analysis of Penal Policy in Croatia, written in Croatian and de-
fended in 2011 at the Faculty of Political Sciences in Zagreb. Secondly, I developed that
research into a short presentation with the picaresque title “The Sovereignty of Evil”
and Ontology of Political Subject: Some Examples of the Good, the Bad and the Ugly
in Literature and Film, Relevant for Preventive Political Morality, at the symposium
Civic Virtue and the Sovereignty of Evil: Political Ethics in Uncertain Times , held in
Rijeka, Croatia, in October 2011. That presentation was made into the paper referenced
in the acknowledgments and also, after further revisions, omissions, and additions,
into a presentation Is Man Good or Bad, and Should He Be Punished? The Ontologies of
Political Subject in Literature which Concern Penal Policy and Punishment, performed at
the twenty-second International Political Science Association world congress in Ma-
drid, in July 2012 (Petković 2012). Most of this material was again revised for use in
this chapter.
2. After watching The Act of Killing several times, I finally pinpointed what shocks
me the most and why the footage looks highly incredulous: it is the way the perpetra-
400 Chapter 6

tors speak of victims, which does not involve blaming them. They laughingly ac-
knowledge how they have framed the victims for some acts they did not commit and
discuss the technical aspects of the act of killing, sometimes surrounded by children or
dancing. It is as they discuss the act of fishing, which is perhaps suggested by the large
carp and the pink-dressed dancers on the bridge exiting its mouth, creating one of the
memorable symbols of the film. (For those who have compassion for animals, the
same shock is probably felt in the face of discussions of hunters and anglers.) Beyond
some culture and politics, this kind of light-hearted cynicism can be, I think, accounted
for by two possible explanations: either it is the total dehumanization of victims and
unscathed feeling of power of the perpetrators, which eliminates the space for com-
passion and the need to explain the act, or the film is in one of its essential aspects
fake, in the sense that Borat and other Sacha Baron Cohen’s “mockumentary come-
dies” are at the same time both true and false. (Or, more skeptically, in a way that
Rudy Kurniawan’s negociant burgundy was poured into fancy labeled bottles for the
incompetent American consumers.)
3. If there is a literary piece that would merit the paraphrased title The Absurd and
Punishment (Kafka’s Trial excluded), Camus’s Plague would expectedly be one of the
prime candidates, a sort of an atheist theodicy juxtaposing Jesuit musings of Father
Paneloux and the reasoning and actions of the protagonist, cool-headed scientific spir-
it, Doctor Bernard Rieux. Jonah, a puppet of God’s amour difficile, is replaced by a
doctor, a preacher by the pragmatist.
4. If this to some ears sounds more like Ayn Rand than Lenin, the devil is in the
detail of the means to produce a society where ideal social conditions may enable true
freedom for human subjects who, not being evil as such, will act peacefully toward
one another and coercion of the state will then happily wither away; in the meantime,
it might be Rousseauist coercing of the subject to be free or, in one of the possible
developments of this line of thought, revolutionary collective action of the Marxist
tradition, which in the sphere of l’économie politique goes quite beyond Rousseau’s
elementary normative reflections in the realm of physiocratic governmentality (Rous-
seau 2002). The dictatorship of the proletariat paired with some form of central eco-
nomic planning would then sound as something “Right,” while some form of anarcho-
capitalism would qualify on the “Left.” From that mess, one could try to extract
oneself by pointing to a Nozickian minimal state as still “Right” and on the other hand
rewrite capitalism as a form of parapolitical oppression inducing evil deeds or qualify
Schmittian-Straussian distinction. And then invoke tomes of arguments and counter-
arguments but given my purposes and the limitations of space, the titular metaphor
makes the point enough: ideological categories are a clutch whose soundness is quite
shaken when confronted with precise thinking. The rest is calibrated by the examples
and further interpreted in the concluding remarks of the chapter.
5. Stavrogin, the central character in Demons, rapes a young girl, who later com-
mits suicide. He also murders his disabled wife, finally committing suicide himself.
6. This liturgical theme appears in the first of the two adaptations to film, the
black-and-white version from the 1960s. Golding’s story belongs to the film section of
this chapter as well.
7. Note that the position of the author outside of the analyzed work, or even
outside of analyzed discursive excerpt, isn’t of the essential importance here. Think
only of Camus’s Stranger in contrast to his abolitionist essay against the death penalty.
8. Excerpts are compiled from pp. 30, 58, 60, 62, and 73; the translation to English
is mine from the Croatian edition I stumbled upon, lacking energy to acquire the
French original or English translation.
9. The title of the movie refers to the symbolically ambivalent and interpretively
challenging fact that the pastor puts white ribbons on children’s arms as a sign of their
purity, reminding them not to commit any more sins. In another vignette from the
stern world of Nordic Protestantism, quite serious and grave, that by its inhibitions
produces a rich inner life, a breeding ground for psychoanalysis, and, a bit old fa-
shionedly, religious experience (in cultural opposites, one should as nostalgically en-
 Punishment and Fiction 401

visage Italian postwar films where it is all congenial choleric surface). A childhood
scene of punishment. Father asks him, “How many blows?” “As many as possible.”
He whips him strongly but so that he can endure. Now as the scenario is recollected by
the troubled old protagonist, the boy asks his mother for forgiveness. She accepts in
tears. It is Bergman’s 1968 Hour of the Wolf (Vargtimmen), an earlier echo of cultural
anxiety without an explicit political layer as in Haneke.
10. The titular phrase is from Tao Te Ching thematized in chapter 5 and chapter 8. In
its fifth poetic chapter that we have omitted when dealing with pragmatic advice of
inaction issued to punishing authorities, it is said that the universe and the sage do not
care for “the straw dogs” (which were symbolically burned and stepped over during
the public feasts in imperial China): “Heaven-and-Earth is not sentimental;/It treats all
things as straw-dogs” (Bolsen 1996, 11/Sec. 5). It is almost Nietzschean metaphysics
devoid of remnants of angst and moralism, a Schopenhauer’s Buddhist dream. (Trans-
lations is again Wu’s but the others are also discursively interesting, for example,
when replacing heaven and earth with nature, or not being sentimental with being
ruthless or simply not being humane, or being impartial.)
11. Obama’s speeches in this area did not exhibit a radical discursive shift in com-
parison to the ones of Bush Jr. The foreign policy arena is a place where evil forces are
fought, for example, in the 2012 State of the Union address (The White House 2012).
12. Omitting tons of various illustrative digressions and additional material in the
process of editing meant that many fictional discursive miniatures had to go, both
classics and caricatures, ideological manipulations and nuanced stories, often with
equally interesting points for the eye of the avid political reader. The following list is
not exhaustive but at least it may serve as a modest menu for further reading and
watching: Sartre’s Dirty Hands, replacing the binary of nature and society with one of
being and history, while his discourse plays tricks on his ontology (and all of that
pitted against Kiš’s Tomb for Boris Davidovich); cynicism of castigation from Conrad’s
Heart of Darkness, putting ontology of the Right in a colonial setting to turn it into a
farce of power in a country where “anything can be done”; McCarthy’s The Road, a
true extreme with lots of violence and an emotionally intense act of retributive punish-
ment in a natural state, and the preservation of mercy and hope, together with differ-
ence between good and evil in the desperate “no choice” situations. And since The
Road is also rendered as a good film, I have to add that many of these were omitted as
well. Iñárritu’s The Revenant, written down before it got thoroughly Oscared: a true
Robinsoniad with nature extremely beautiful and cruel, epitomized by the grisly scene
with the grizzly and transcended by faith, leaving punishment to God and some
Arikara Indians pretty nearby, with many other political facets and “shooting some
civilization” into Indians. A psychoanalytical section also had to go, with Rehn’s Only
God Forgives, which could also be “Only God Punishes,” sovereignly swinging his
katana beyond the positive law and procedure, affirming the pedestal of a punishing
father and a retributive morality, and the older Bergman’s From the Life of the Marion-
ettes with various forces that a subject cannot manage. The rest of bits and pieces from
von Trier’s cycles or Boorman’s less metaphysical Deliverance had to depart. I further
excluded more contextually colored pieces, mixing equations of violence with econo-
my and culture, such as Kotcheff’s older Wake in Fright or Backyard (El Traspatio),
dealing with violence against women within a machistic culture that ultimately deals
with them either through domestic violence or gang rape after they have lost the
uneasy historical patriarchal protection, drawn to precarious sweatshop toil by the
globalized economy. Culture and identity appearing between society and nature re-
quired exploring the history of violence in politically, economically, racially, and eth-
nically divided societies, which was further done through the readings of La Haine,
American History X, and the renditions of a Yakuza-eiga binary conflict between duty
and humanity. Even Imamura’s 1997 Unagi swam in and out, in a story about destiny
and theodicy trumping systems of punishment and tracing conflict in psychological
turbulences instead of the social and economic factors. And if that isn’t enough, which
I doubt, the menu for fictional discourse analysis gluttons even included a seemingly
402 Chapter 6

children’s section of recent hits: politics of Warcraft and an ambivalent ontology of

orcs, Angry Birds unleashing suppressed violence in a collective conflict, and theodicy
of Paddington as inner psychoanalytical drama of the villain taxidermist Millicent,
played by Nicole Kidman.
13. There is some controversy surrounding different versions of Burgess’s novel.
The early American version of the book excluded the final “metanoia” chapter where
the main character sees the errors of his ways. Kubrick filmed the pessimistic, shorter
version, which is the natural one to employ in the theoretical discussion on politics—a
pessimistic activity that usually does not rely on moral volte-face.
14. One might argue that Alex’s nature is the product of his dysfunctional family,
which is in turn a product of an alienated industrial society. One of the points ex-
pressed in the following chapter on criminological discourses is that the two—family
and society—cannot be easily separated.
15. More literal reference to the English translation of Augustine’s classic would
render the subtitle as The City of God, as in the title of the section.
16. See Brešan (2013, 167–69). In the end, before “the mighty seagull’s beak pierces
his skull,” the local overthrown fascist leader shouts “Sieg heil!” It is, in other words, a
perfect example of Benjamin’s mythical violence, spilling blood to establish a new
order. Since this seems a good place to evoke the political theory of the chapter on the
death penalty, it should be added that Beccaria seemed to agree with Benjamin, put-
ting deistic metaphors against ordeals that bear the false name of judgments, “as if the
links in the eternal chain which originates from the breast of the First Mover could be
continually disrupted and uncoupled at the behest of frivolous human institutions”
(Beccaria 1995, 41). The point of theoretical disagreement is perhaps—aside from the
scrutiny of the exact position of Beccaria and Bentham on the death penalty mandated
and executed solely by the “frivolous human institutions”—that the rational plan
Beccaria proposed is for Benjamin nothing more than a more civilized and thus more
hypocritical mask for mythical violence.
17. One can render punishment in a Bosch and Bruegel style of minute observation
of grand tragedies of earthly delights and dances of death, as a political satire closer to
Catch 22, or to the work of the Pythons. In that sense, for example, one of the actual
projections of Croatia’s future political fortunes was perhaps even bleaker and has to
do both with fiction and punishment. One of the biting journalists and commentators,
calling for battle against the two big parties before the 2015 general election, in the
context of inflated public sector, demographic decline, and emigration of the young
people, saw the future of the country as follows: “In the end in Croatia only a million
bureaucrats will remain. They will wander hopelessly across the dirty streets and
abandoned offices seeking for anyone left to write a ticket. For lack of bread, they may
eat seals” (Babić 2015). Although one does not need to be Keynesian to see the dis-
course of Manichean battle between the public sector as a rent-seeking devouring
machine and the private sector as an unquestionable creative force as politically biased
and naïve in a complex economy of circulating goods and services, one should appre-
ciate the wit and another grain of truth beyond fiction of a pugnant ideology. It is a
situation of punishment without an object, a “Let them eat cake” (Qu’ils mangent de la
brioche) of punishment, a saying apocryphally attributed to Marie Antoinette, reflect-
ing the aristocratic mood in the times preceding the French Revolution, at least in
subsequent writing of political histories.
18. The quotes in the section are taken from Melville (2006, 11, 49, 53, 66, 82).
 SEVEN
Criminology
Politics in the Science of Crime

A specter of politics is haunting criminology. But, in contrast to the bet-

ter-known version of the dictum, there is no holy alliance to exorcise this
specter, although one could say that the pope and tsar, French radicals
and German police spies, are still playing the same game of politics. It
means that criminological theories appear in various political roles and
bring conflicting policy implications. They are easily associated with dif-
ferent societal interests and political forces, labeled, among other denom-
inations, as conservative or progressive, in line with the old distinction
between Left and Right employed in the preceding chapter. Criminolog-
ical accounts on violence, punishment, or both are neither conclusive nor
authoritative. While those on the Right, still religious or secular, will not
stray far from the idea of evil as seen in the work of John Kekes, who in
our concluding chapter offers a theory warranting the position that
“crimes and the development of the propensity for vice can be made less
attractive by making punishment swift, certain, and severe” (Kekes 2005,
115), the epistemology of the Left will usually rely on the basic Brechtian
metaphor from the poem On Violence that insists on hypocrisy or simple
shortsightedness of finger pointing: “The headlong stream is termed vio-
lent but the river bed hemming it in is termed violent by no one” (Brecht
1997, 277). In other words, it is the trope of structural violence following
us from the introduction: we should not point our finger to the evil indi-
viduals or groups but, instead, to society’s structures that are to be
blamed for violence.
However, criminology’s relation to politics is both subtler and deeper.
Although its beginnings have been derisively called prattle, with the ar-
gument that criminological discourse lacked not only theory but elemen-
403
404 Chapter 7

tary rationality (Foucault 1980, 47), criminological theories have no doubt

evolved into a rich and venerable plural tradition that gives various ac-
counts of the causes of violence and ideal policies of punishment. Like
other social sciences, criminology has not escaped the specter of politics,
not only in the sense of ideological shifts and battles that can be easily
documented but also its very object—crime—and the ability to isolate it
and discuss it, is politically given. The constitution of the discipline itself
was enabled by normative and political work of the statelike structures,
pacifying society with the monopoly of force and producing, processing,
and containing criminals by means of the police, criminal justice, and
prison, opening space for causes and effects of structurally produced and
normatively defined behavior. As there is no sin without the normative
work of religion and its theological backing, there is no crime without the
system of positive law, backed by the state and sanctioned by criminolo-
gy—although this is, of course, nothing to say on the roots of violence
and evil or anything labeled as bad behavior, which is through the lens of
various discourses discussed in the concluding chapter.
This simple fact about criminological discourses is sometimes over-
looked, but it is nothing especially new. Garland’s account is instructive
in this sense. He discards the conventional textbook history of science,
where “icons and demons” appear in a story on progress about scientific
understanding of some perennial questions of malice and wrongdoing as
mythological; instead, criminology has “a contingent rather than a neces-
sary place in the halls of science” (Garland 2002, 9–10). Speaking of it in
singular, as a discipline, his idea is to show how it was formed by the
historical intertwining of a scholarly attempt to explain crime and older
governmental effort of social control, claiming
that modern criminology grew out of the convergence of two quite
separate enterprises—“the governmental project” and “the Lombrosian
project”—which together provided a social and an intellectual ratio-
nale for the subject. By talking about a “governmental project” I mean
to refer to the long series of empirical inquiries, which, since the eight-
eenth century, have sought to enhance the efficient and equitable ad-
ministration of justice by charting the patterns of crime and monitoring
the practice of police and prisons. This tradition of inquiry was eventu-
ally to become a major part of the criminological enterprise and to
provide criminology with its central claim to social utility. The “Lom-
brosian project,” in contrast, refers to a form of inquiry which aims to
develop an aetiological, explanatory science, based on the premise that
criminals can somehow be scientifically differentiated from non-crimi-
nals. Although each of these projects has undergone important revi-
sions during the twentieth century, and the situation of criminology
has been significantly altered by its entry into the universities, I will
suggest that the discipline continues to be structured by the sometimes
competing, sometimes converging, claims of these two programmes.
(Garland 2002, 7–8)
 Criminology 405

While Garland is eager to differentiate the two—which has its ratio-

nale into which I cannot enter here further due to the scope and purpose
of the chapter—the simple fact, among others, is that Lombroso also got
his sample from prison and in the wider picture sketched here the precise
distinctions in a genealogy of criminology are not that important. In this
chapter, I present some discourses on crime and punishment placed in
the field of criminology as an interdisciplinary attempt, which is also an
older conception of political science, still often presented in plural in the
continental Europe. After a short presentation, relevant within the frame-
work of this discussion, on what criminology is, how its objects are
formed, and what fundamental controversies are present, I then present a
short, elliptic, but hopefully good enough review of various discourses
on cause of crime and concepts that are employed in making sense and
dealing with the various forms of penally sanctioned violent behavior. In
the final part, before concluding, I further explore the declared theme of
criminology’s political presuppositions and its investedness with politics.
This brief chapter doesn’t do justice to the academic industry with a now
long history, but at least a short and elliptic overview is necessary to
complete our multifaceted picture of various discourses on violence and
punishment.

MATRYOSHKA DOLLS OR THE DOMAINS OF STRUGGLE?

The simple but pretty abstract definition of criminology—one that I long

ago got from a Croatian penal law professor’s published lectures intro-
ducing criminology to beginners (see Horvatić 1994)—is that it is a study
of the phenomenology and etiology of crime. The first infusion of the
theoretical order contained in the logos is combined with the observation
of things on light: a phenomenon is something that appears in our vision,
given more or less directly in our experience and mediated by a cultural
frame; the second aspect points to causes, another set of things that can in
development and in time be connected with the things that primarily
interest us. It thus seems that “crime” first appears before our eyes in
various shapes and dynamics, and then we look for general causes be-
hind the appearances of crime, as some biologists study the behavior of
frogs or physicists examine the attraction of physical bodies. So it is with
murders, rapes, arsons, and computer crime, in individual instances and
at aggregate levels. And then one more Greek word, pointing to some
rudimentary and powerful concepts, might be added. Telos, meaning the
goal or purpose of an activity.
The point of discovering the patterns and causes of crime behind vari-
ous modalities has to be practical, preferably usable by policy makers
interested in controlling crime. As an arrow should hit the mark and an
activity fulfill its goal, the knowledge of criminology is to be used in
406 Chapter 7

curbing or even—in a utopian framework—eradicating crime. But unlike

applied sciences as criminalistics and forensics, chasing evidence and
interrogating witnesses, the knowledge of crime has a more fundamental
or far-reaching pretension: it is theory of crime, a structured understand-
ing of the truth of phenomena. There is a scientific answer to the question
why people steal, rape, kill, or commit war crimes and how to best pre-
vent or punish such crimes. In the genre of the positivist philosophy of
optimistic science battling backward scholasticism and heavy burdens of
metaphysics, there is an aphorism that encapsulates the Geist of this ap-
proach. Alongside with the motto on Brazilian flag, Auguste Comte pro-
vided it in the nineteenth century: to know in order to foresee, he said; to
foresee in order to act, to be able to do something. To have power over, as
he continued in more rhythmical, almost poetic original: Savoir pour pré-
voir, afin de pouvoir. Crime, criminals, preventive policies, punishments,
and criminal justice policy making—all of that is of interest of criminolo-
gists who want to understand and explain crime, to foresee it and devel-
op policies to prevent it. Thus, the other early positivist motto from the
green and yellow flag could do as well: ordem e progresso, order and
progress as a goal, against the forces of chaos.
Methods, disciplines, and theories vary tremendously, as we shall see,
and that can only be expected when we are discussing a complex object
concerning human behavior and society, and crime is certainly one such
object. 1 The object itself thus merits some words. Together with theories
and methods, the object of inquiry is one of the defining elements of
empirical sciences (e.g., life for biology, politics for political science).
How is the object, crime, formed or, in our narrower field of interest,
“violent crime,” involving some form of physical violence? The usual
story portrays the formation of an object with the help of a geometric
metaphor of concentric circles that represent grades of normatively dis-
paraged behavior ranging from undesirable to strongly forbidden and
sanctioned.
There is, first, a wide circle of deviance. A deviant act is not exactly
criminalized but it is not encouraged either, and is considered as socially
harmful. And then, in a narrower circle inside, where we arrive as trans-
gressions progress, there is a thing called delinquency. In any given
Western society, we thus arrive from excessive drinking of alcohol, which
is usually bad for your health, to behavior such as petty fights and van-
dalism, which do some damage to someone in society, as alcohol drink-
ing often does too. So, to follow the first example, from drinking we
arrive at drunk and disorderly behavior in the public, being obnoxious,
aggressive, and urinating on the street. Finally, in a third small circle that
stands in the middle, encompassed by the two wider ones, there is
crime—murder, let’s say, or an aggravated assault. How does this depic-
tion associate with criminology and its neighboring disciplines?
 Criminology 407

The wider circle has to do with softer mechanisms of control such as

education, ostracism, social mores of reprimand, and various informal
sanctions. Then the second circle, which has to do with milder, often
communally and locally administered, norms. It is the circle of misde-
meanors. Finally, with crime, we arrive in the circle where penal law
provides punishment in terms of usually more serious fines, prison
terms, and sometimes death. On the one hand, we have the disciplines of
ethics and sociology having to do with the widest circle, and on the other
hand, the discipline of penal law. 2 In the grayish middle of the second
circle stands the sociology of delinquency intermingling, let’s say, with
the administration of misdemeanors.
It is a familiar sight when we portray it in such a way, representable
by another metaphor, the one of Russian wooden dolls designed in the
nineteenth century, painted as if they were dressed in a sarafan, fitting
smoothly one into another. Matryoshkas—or babushkas as they are called
in Croatia (babuške), going one generation older or referring to the usually
curvy dolls in a more precise manner—suggest an ordered hierarchy.
Each smiles at us, as we progress to the heart of darkness. But it is easy to
notice that this caricature does not do justice to the object of criminology.
Even as we take a peek at the sociology of delinquency, we see hints of a
telling contestation of discourses. Delinquency is a concept of sociology,
not only wider than crime but also different; much delinquent behavior,
as perhaps some of crime as well, is not violent, as sociologists insist,
disrupting the flow and subtly opting for a decriminalization of specific
areas of criminality (Carr 2008). There is a will to make of it a culture; for
conservatives and homeowners, for example, graffiti may be a nuisance
deserving penal action, but for the more liberal scholars of subculture,
practitioners and some benevolent observers, it is an art improving qual-
ity of life or at least something far removed from any circles or wooden
dolls neatly fitting one into other, calling to open the next as the one
before is opened. Another example illustrating the matryoshkas metaphor
challenged here is the idea that smoking some pot might lead to waving
deadly weapons, in an Aslinger type of discursive moral panic.
The same point applies to “crime” as the object of criminology. There
is no consensus on the content, color, and the boundaries of the middle
circle or the inside of the smallest doll. It may move or jump to an outside
circle. It may swap places with the next doll, or disappear—implode, so
to say—so that we find nothing in the middle. In other words, the object
of the discipline is contested, not only by de Sadean attempts to rewrite—
at least, at the level of proclamation of his characters, who may not
understand the nature of their desires in the best way—the morals of the
society. Historically and comparatively speaking, the definition of crime
changes. To return to alcohol, one may drink, with fairly well-known
consequences of turning into Mr. Hyde, the Nutty Professor, or Mary
Poppins, or stay more or less the same as did Hemingway, according to
408 Chapter 7

one spirited article on the theme (Winograd, Steinley, and Sher 2015), but
the drinking itself may be understood as a legitimate tradition or it may
be defined as criminal behavior, proscribed and sanctioned. Puritanism,
enacted in law, creates a crime normatively and produces a mass of new
crime empirically. The prohibition era in the United States, introduced
with the Eighteenth Amendment and abolished with the Twenty-first,
offers a clear and banal example from the history of changing definitions
and moving boundaries of criminal behavior demanding penal action.
The same is with some other forms of deviancy such as prostitution
that vary in their social and legal definitions from legitimate sex work to
blasphemous harlotry. Homosexuality as a still controversial subject to-
day offers a wide array of historical and comparative differences: from
criminalization, paired with torture and capital punishment, via delin-
quency and deviancy, to toleration or public affirmation of an alternative
sexual identity, with special provisions stipulating higher sanctions for
assaults against persons qua homosexuals as a form of penal affirmative
action. One may earn stoning to death as a practicing homosexual in
Yemen or Mauritania, life imprisonment for “aggravated homosexuality”
in Uganda, or enjoy special protection as victim of “hate crime” in the
United States, while popular culture—for example, through TV series
such as Modern Family—affirms identities that were once hidden or pub-
licly vilified. The point is that etiology of crime seems to depend on prior
normative operations of mores and moralities, politics and law. We can-
not know the object before we delineate it normatively as a strongly
unwanted behavior, ranging from the smallest nuisance punishable by
law to the biggest societal taboo about which there is some civilizational
consensus, although the contexts vary drastically as do penal policies and
their implementation (we glimpsed this in the third chapter).
This is nothing new to criminology, which is a disciplinary place of
many opposing schools, sects, and approaches, just as any other disci-
pline having to do with the social, starting from my home terrain of
political science, struggling with vogues and scholastic battles, depend-
ing on the tides and table turns of politics of the day, decade, or era. One
might add some conceptual order in this formation on the object: for
example, following Maurice Cusson on deviance (Sauvageau 1999, 58)
and state that the status of “crime” can depend on the context (sex in
public is prohibited, in bedroom it is allowed); on the role of the perpetra-
tor (a soldier can kill an enemy in war; in peace, he is a murderer), and
culture (homosexuality affirmed as a legitimate sexual identity or a crime
meriting capital punishment). But the point is that the contestation is
quite fundamental, perhaps witnessing the age that has, to its good or
bad in the final line, escaped the monolith of fundamentalism. Criminolo-
gy has also witnessed the “demobilization of social reaction” (Sauvageau
1999, 55) and appears in constructivist theories and under labels such as
critical criminology, speaking of the “hegemony of criminal law” or para-
 Criminology 409

doxically hitting the nail on its head, such as in Christie’s radical “crime
does not exist” (Sauvageau 1999, 61). In other words, criminology is quite
a Humean pigsty where jumps from what is to what ought, and back, are
easily done.
The following picture thus seems appropriate: Instead of smiling ma-
tryoshkas in ethnic outfits, a more adequate simile can be acquired from
the titular phrase of Houellebecq’s initial novel that spoke of the broad-
ening of the area of struggle (extension du domaine de la lutte). Definitions
are contested and are part of the system that deals with something and
produces it to some extent. Concepts are tools of power in such an area
(or better said, an arena) of struggle for definitions that are temporarily
fixed by penal law or other norms pertaining to penal policy but that can
be changed, and are changed across space and time as we have seen in
former chapters. Crime is not given by nature but by politics. This pre-
cedes all the methods that may fix something, by establishing regularity
between the data acquired by questionnaire or by an experiment, but
only about the things, political semantics, and “givens” provided by the
political context of what is allowed and what is not. The upcoming sec-
tions briefly trace the historical varieties of criminological discourses,
pointing to its context as a presupposition of its development and prag-
matic value, which is a motif running through the sections to be devel-
oped generally in the conclusion. Although reflections on misdeeds,
which obey some structure of scientific reasoning, probably go back in
history as far as does the organized community, and one can see them in
the reflections of ancient lawgivers, as in Yourcenar’s Memoirs of Hadrian
on laws that work and those that don’t, it is usually held that criminology
as a modern science is a child of nineteenth century. It starts with Lom-
broso, an Italian physician interested in prisoners and a bit to the north-
west, with French-speaking statisticians of crime interested in statistique
morale as the founding moment of sociological criminology of Durkhei-
mian type, not operating with individual etiologies but with the aggre-
gate social facts of crime.

PHRENOLOGY AND THE RHYTHM OF CRIME: TWO FACES OF THE

SAME EPISTEMOLOGICAL COIN

Lombroso went a bit further than the commonsense anthropometry of

“cheating lips,” “ugly like a thief,” and other folk sayings that inscribe
immorality and criminality in the anatomy. It is no surprise that the
Lombrosian discourse, somewhat complex and developed over time as
exemplified in subsequent editions of his life work, The Criminal Man, is
often today presented as a caricature. A born criminal (delinquente nato),
usually strong jawed and endowed with a low brow, is lacking develop-
ment. This evolutionary atavism cannot earn a decent living, so it is dis-
410 Chapter 7

posed to commit crime. In addition to tattooing, an eminent indicator of

the criminal man that caught Lombroso’s eye, cranial and anthropomet-
ric characteristics were measured and categorized as possible predictors
of criminal behavior. Lombroso even concluded that “European crimi-
nals bear a strong racial resemblance to Australian aborigines and Mon-
gols” (Lombroso 2006, 57) and, looking at the many southpaws in his
sample, found left-handedness highly suspicious (a trait that lately fared
well in the White House, Bush Jr. and Trump excluded). Jucier details
aside, Lombroso generally offered some sort of vaguely qualified biologi-
cal determinism as a basis of crime. What would later be called genetic
material was then a murky intuition focused on the observable traits of
the body, especially the skull. Although his typology was more complex
and, for contemporary ear, bizarre (just as Borges’s Chinese encyclopedia
from The Analytical Language of John Wilkins), involving “mattoids,” “cri-
minaloids,” and other strange species, it is the most memorable part of
Lombroso’s project, a trademark of his idea to scientifically discover the
etiology of crime to be found in an early attempts of criminal anthropolo-
gy. His most famous successors in the vein of nineteenth- and early twen-
tieth-century criminological positivism, Enrico Ferri and Raffaele Garofa-
lo, added a few more factors and were generally less physiognomically
oriented. Ferri offered an elaboration of crime causation in the fields of
sociology and psychology, present already in Lombroso, while Garofalo
offered more of a policy-oriented Darwinism also following his predeces-
sor.
Teleology was not something to be hidden in these attempts. The
evolution of the human race was to be catalyzed by the penal system
working efficiently on crime: incorrigible criminals were to be executed
(what else to do with the poor creatures?); those with a bit of civilized
social disposition, but obviously not enough, were to be imprisoned; and
those who were driven into crime by social occasion, but did not fit into
some of the racial categories, had a chance of integration after they paid
their debt to society. “As social conditions improve, crime will lose its
atavistic ferocity,” wrote Lombroso, admitting that some crimes may be
useful, and using the concept of symbiosis against a Kantian type of
retribution, but his progressive socialism administered by the govern-
ment had no mercy for those lagging behind on his evolutionary ladder:
“Sadly, born criminals are impervious to every social cure and must be
eliminated for our own defense, sometimes by the death penalty” (Lom-
broso 2006, 354). It was retribution, although measured not so much by
the deed as by the “dangerousness” of the person (Lombroso 2006, 341),
paired with rehabilitation and resocialization where possible in terms of
the simple goals of penal policy. In other words, after criminology, in a
positivistic manner, gave its verdict on the truth about the crime, the
policy against it was, avant la lettre, on the trail of the one conceived a
century later in Loïc Wacquant’s neoliberal centaur state—the one that
 Criminology 411

kicks the underclass with all four hooves while maintaining a human face
for the bourgeois society—in a bit more brutal form. It was more about
eugenics of race than healthy economic competition and a penal appara-
tus that deals repressively with those unfit to keep up with the competi-
tion. In a discourse that today sounds offensive for most ears, it was
death penalty for the degenerates.
As exemplified in the mentioned The Miracle of a Rose, Genet’s autofic-
tion, where French penitentiaries take anthropometric measures of body
parts, the data was largely provided by the penal system and that opened
space for scientific discourses. The samples for Lombrosian criminology
were provided by the modern prison, seemingly rich with excluded ata-
vism, animal-like savages with acute senses using a strange argot, at least
in some localities, which piqued the doctor’s interest, unlike England
where up to several thousand “English convicts” did not sport such in-
born anomalies, as it was argued in the early important critique by
Charles Goring from His Majesty’s Parkhurst Prison, who more moder-
ately spoke of criminal diathesis and judged Lombroso’s efforts “dead as
a science” (Goring 1913, 17; see also Lombroso-Ferrero 1914). The truth of
crime was a function of the discourse of the late nineteenth and early
twentieth century, where imperialistic colonial forces plunged into one
world war and then, with the reaction of fascism and Nazism, into an-
other more (auto)destructive one.
On the other hand, and a bit earlier, another school did not have a
problem with the sample size, which was also provided by the state now
working on the population, policing it, and measuring statistics. It was
part of what Foucault calls the dispositive of security, of political power
operating in the milieu to affect aggregate numbers dealing with such
things as public health, social security, and the incidence of crime, as we
briefly review in the fourth chapter. (It is his development of the concept
of pastoral power somewhat replacing biopolitics; I don’t even dare an-
swer the scholastic question, is biopolitics pastoral?) The main represen-
tatives of the cartographic school were Adolphe Quételet, a Belgian
astronomer and early proponent of statistics, and André-Michel Guerry,
a French lawyer who was into the research and classification of homi-
cides and suicides provided by statistics as a technology of power (see
Hacking 1991). While anthropometrics was focused on the individual,
“the rhythm of crime,” as the film we mentioned earlier (Ritam zločina)
christened this phenomenon, subdued the individual to the general pat-
terns of crime. Geographic and social variables were correlated with rates
and types of crime to reach conclusions such as that urban settings expe-
rience more property crime, while underdeveloped regions and villages
excel more in crimes involving physical violence. The thinking on the
general level elicited the same causal thinking on what leads to crime.
Here it was the social and environmental variables that were measured,
instead of skulls and foreheads. The discourses were widely different,
412 Chapter 7

and their ontologies were not necessarily contradictory but operating on

different levels. Their epistemological pretension, however, was exactly
the same.
At least on the level of a simple logical operation, these two strands
set the epistemological terrain for the extremely diversified and rich body
of theories and research that provided the scientific grounds to move
from simple moral retribution to more complex penological goals. On the
one hand, space was opened for the ontology of the biological and
psychological. Crime as something to be controlled and weeded out if
possible was caused by forces of nature, by biology, genetics, and the
human psyche, forces that have to be uncovered, understood, and ideally
one day taken into account by the somewhat slower penal authorities still
sticking to the anachronistic retributive crime and punishment scenario.
On the other hand, the same thing was conceived on the basis of the
ontology of social interaction and structures, opening a vast area of
multiple languages that speak less on the level of human behavior and
more on the level of social action or structures that have autonomy and
their own reality, be it cartographers of la statistique morale or Gabriel
Tarde “blessed with a literary touch and a Frenchman’s sense for the
piquant” (Wilson 1954, 11), who went on to develop general social theory
against Durkheim, combining sociology with psychology and offering an
early perspective of micro-level theorizing on crime. The violent behavior
of social beings, labeled as criminal behavior, was conceived as learned,
as other activities are. As the patriarch of American sociological criminol-
ogy Sutherland later claimed, in crime, as in other of walks of life, one can
observe a process of social learning of definitions and actions appropriat-
ed through communication that takes place in the social milieu (Suther-
land 1947). Following Tarde, this simple opposition may be supplanted
with more of a trinitarian solution (bios, psyche, society), opening space
for psychology, forensic psychiatry, and psychoanalysis, or divided into
more categories and subcategories, but this is not the place to develop
that in any detail. I instead roughly portray this vast space—criminology
as sociology of crime—before developing the narrative into competing
paradigms of Marxism and rational choice. Then, on a bit Lombrosian
side of the coin, I introduce other etiologies operational in the field of
science of crime and crime control.

AMERICAN SOCIOLOGY OF CRIME: SOCIAL ECOLOGY, CULTURE

CLASH, LEARNING, AND STIGMA

One could speak more precisely of such classic academic ventures such
as the Chicago school of sociology offering discourse on the issues of our
interest, but switching continents (from Europe to America), a short treat-
ment of the subject, a general sketch of the ontology offered by discourse
 Criminology 413

and later sketching of some developed, more extreme, and more specific
opposing theoretical poles justifies the vague label of “American sociolo-
gy of crime” as paradigmatic. Generally, it deals with social subjects drift-
ing into criminal careers and milieu, seeing it not in terms of individual
morality but as a social process and a group thing, having to do with
social dynamics, differences, and integration mechanisms.
The mentioned Chicago school was blessed with a natural social ex-
periment par excellence, of a rapidly growing city with a high influx of
immigrants that, together with some brilliant and diligent minds, pro-
vided sufficient conditions for sociological conclusions to generalize. In
other words, it was a discursive reflection on the problem of the era,
times, and fashion. It was an urban sociology of structure and environ-
ment, of large-scale processes such as immigration, and group dynamics
such as ethnic and race relations, that gave birth to concepts such as
social disorganization specifying a more general Durkhemian motive of
anomie or, as conservative political philosophers call it, a lack of author-
ity. This theoretical machine—many of its champions of European origin
or doing their academic Bildung in Germany, combining serious theoreti-
cal education with an orientation of empirical social science—developed
qualitative methods and paradigmatically created the basis for the sociol-
ogy of crime.
The already introduced William Thomas of the law of “perceived as
real” and his Polish colleague Florian Znaniecki coauthored the five
tomes of Polish Peasant in Europe and America about the Polish immigrant
community in the United States, developing the motive of social disor-
ganization. At the same time, in The City, Ernest Burgess and Thomas
Park conceived of the city as a series of concentric circles—similar to the
ones referred to earlier in this chapter, narrowing from deviancy to
crime—associating city social-economic geography and its population
fluctuations with zones associated with incidences of crime, and Burgess
also developed an Apgar-like test of proto-actuarial criminology predict-
ing the success of a parolee’s reintegration. While the devil is in the detail
and any textbook and short overview discourse hardly does justice to the
material, the general ontological motive is structural. The motives from
The Polish Peasant and The City were elaborated by Clifford Shaw and
Henry McKay into a here highly present motif of “ordinary people” be-
coming “evil men” only on a more mundane scale associated not with
war crimes and extreme situations but with the mass society of social
differences, fluctuations, and limited resources. Their study of Juvenile
Delinquency in Urban Areas, published during the Second World War, did
not place the discursive accent on responsibility and control but on the
roots of delinquency, and subsequently crime, having to do with anomie
stemming from measurable population movement and paired with eco-
nomic affluence and the ethnic diversity of the area. It was not the mov-
ing criminogenic culture as the potential culprit to be blamed for crime,
414 Chapter 7

but a certain area, an urban ecology of the city center where the poor
classes dwelled and turnover bred delinquency policed by the state appa-
ratus.
This idea of the appearance of the gang and individual violence along
with property crime in the social and geographical setting of the urban
environment is sort of a paradigm of American sociology of crime, born
in the social context of capitalist economy, immigration, racial tensions,
and ethnic incoherencies of the melting pot. Its famous child, the general
anomic concept of social disorganization, also, as reader may have
guessed, informed the criminological thought of Edwin Sutherland, an-
other prominent social thinker of crime and one of the champions of the
Chicago school, who authored the classical Principles of Criminology and
professed the above-cited tenets of sociologism of crime. Although his
trademark concept of white-collar crime adds to class equality (of manag-
ers and owners not getting away with it, at least within the sociology of
crime), I won’t pursue this rollercoaster of names and studies in a text-
book manner but instead stay with the elliptic story thus far and break
this general and vague narrative into several recognizable theoretical mo-
tives that were there, from the beginning or developed later, opening
space for our next section of discursive probing.
The first of the general traits, so simple that that sometimes it may go
unnoticed, is that the sociology of crime is an urban thing, not of build-
ings and positive connotations of high culture versus rural folklore of
banjo and moonshine, but of anonymity and different social bonds. Small
villages may, metaphorically speaking, sport “bad blood,” the country-
men indulging in land conflicts and bitter feuds, or alcohol-induced fatal
brawls and shootouts, but urban violence of individual perpetrators and
predators, gangs and organized crime syndicates, is associated with cit-
ies. In the case of the gang violence that caught the eye of the sociology of
crime, this down-to-earth factual observation lives on, at least where
ghetto logic and poverty work against middle-class suburban peace, de-
sistence, gentrification, and zero tolerance or problem-oriented polic-
ing—by surveillance and force or by focused interventions:
Urban violence recruits its principal players from among young men
aged between 15 and 25. They are also its principal victims. In the vast
majority of cases, it is at this age that most law breakers begin their
criminal apprenticeship and, the more serious the offences committed
by a youth under the age of 25, the more likely it is that they will offend
again. The younger the age at which a person enters the world of law
breaking, the more difficult it is to rehabilitate them. (Vanderschueren
1996, 100)
This anthropology of young urban males then develops into an urban
ecology of crime with tectonic metaphors of fluctuations, as in Thrasher’s
1927 classical analysis (another Chicago school dissertation) that within
 Criminology 415

“The City” focused specifically on The Gang (Thrasher 1963). The begin-
ning of that story “operating on the following levels” kind of makes the
end result of drifting into crime predictable: “The ecological processes
which determine the structure of the city create the interstitial area char-
acterized by a variety of indices of conflict, disorganization, weak family
and neighborhood controls, and so on. In these interstitial areas, in re-
sponse to universal childhood needs, spontaneous play groups develop”
(Bordua 1961, 120). And we know how this primordial community in-
duced by geography ends up, a bit as in Meirelles and Lund’s epic film
with an Augustinian title and violent content: Cidade de Deus, or City of
God.
Second, it is a “culture thing” in terms of ethnic, religious, and other
identities that go with different value orientations. The sociology of crime
won’t frame it anthropologically in the sense of ways of life appearing on
a limited space and with the limited resources that structurally produces
conflict, but as cultural clash where some things are allowed by a culture
or even demanded by it, while prohibited or abhorred in another culture.
So it is not us vs. them as in the Scorsese’s film on the Gangs of New York,
which included scenes of quasi-medieval battles of assembled armies
solving their conflict on the battlefield instead of low-intensity guerilla
bickering that still emerges as the balance of powers shifts, but as a prob-
lem of minority culture not integrating into a majority culture. While
these sets of problems today, at least in the European Union, usually
appear in association with the Islamic population, the examples of the
day had honor killings, here used as an example of punishment in the
introduction, emerge in another context. The actions of conservative rural
Italians appeared under this label, killing not their daughters who had
indulged in premarital sexual relations, but their seducers, thus perhaps
offering a lower-level aporia for the explanatory efforts of evolutionary
biology, than the killing of one’s own offspring. Urban anomie is also a
phenomenon of a cultural and ethnic melting pot and the exemplary
works in that genre come from Thorsten Sellin, another (Scandinavian)
immigrant, who wrote the preface for Rusche and Kirchheimer’s book
informing our historical chapter, researching “culture conflict and its role
in the causation of crime” (Sellin 1938, 97).
Third, it is to a significant extent a class thing, in Sutherland’s text-
book and throughout this discourse, not calling for revolution but ac-
knowledging the role of the differences concerning economic capital and
place in the production. Perhaps more importantly, the important things
belong to what was dogmatically called the “ideological superstructure”;
later, they were theorized into autonomy of the forms of capital, in
French sociology championed by Bourdieu, who developed the concepts
of social, cultural, and symbolic capital that had to do with social net-
works, knowledge, habitus, style and the dominant categories employed
to put people into their place in the societal structure. It is just as Bordua
416 Chapter 7

noticed in his half-century-old assessment, associating early acquisition

of cultural capital and the small civilizing process and formation of habit-
us in the family. He knew Elias and Bourdieu without formal references
and knowledge of their developing work which gained broader academic
momentum later
In addition, the working class child is less likely to be surrounded with
educational toys, less likely to be trained in a family regimen of order,
neatness, and punctuality. Of particular importance is the fact that
physical aggression is more prevalent and more valued in the working
class milieu. When a working class boy thus equipped for life’s strug-
gle begins to function in the school, the settlement, and other middle-
class-controlled institutions and encounters the middle class measuring
rod, he inevitably receives a great deal of disapproval, rejection, and
punishment. (Bordua 1961, 124)
The middle class, in the small schooling rituals, punishes the lower
class by measuring them according to middle-class standards. Thus,
fourth, it is both class and culture that is famously and generally devel-
oped in Merton as a typology of situations that arise out of the discrepan-
cy of societal means and cultural ends, and applied in delinquency theo-
ries and gang literature elaborated by the classics scrutinized by Bordua’s
review. King by his middle name and a king of middle-range theorizing,
Merton logically develops the possibilities stemming from rationality
conceived within culture, associated with a partly autonomous agency
that still wants to live up to the cultural ends, as expounded in the chap-
ters of his Social Theory and Social Structure (1951). If goals are attainable
by legitimate means, then one is OK, a middle-class guy or girl following
a boring career path or earning as an economic entrepreneur building an
empire from the scratch. But if one cannot attain what he wants—to give
some banal but nonetheless illustrative examples: money, shiny cars, lux-
urious leisure, and appealing partners on the sexual market or sublime
respect and dignity in the community—then if one is not to retreat into
some kind of social depression, one essentially has two options. The goals
are changed in a strategy of a rebel or a local hero, as in the Dire Straits
emotional instrumental ballad written for the Bill Forsyth 1983 film of the
same name (Local Hero) about an oil company representative who aban-
dons corporate profits and his career for a sense of belonging and love in
a charming local community. The other one is to use illegitimate means,
as Carl Harris, now about five decades of age, highlighted in a New York
Times story about harsh prison terms: after being convicted of a few
crimes associated with crack dealing, including violent assault in the
crack den launched against the people consuming his drugs without pay-
ing for them, Harris ended up in prison for twenty years, where he ac-
cepted Islam and turned straight; he and his wife now try to “accentuate
the positive,” while pointing out that authorities overdid it. And how did
 Criminology 417

the story start? Carl, not being immune to some of the banalities listed
earlier, watched the dealer with an expensive car and an attractive girl:
“I’m watching the way he carries himself, and I’m standing there looking
like Raggedy Ann. My girl’s looking like Raggedy Ann. I said to myself,
‘That’s what I want to do’” (Tierney 2013).
The point of this “strain” metaphor is about the discrepancy in the
culture of the American Dream where “everyone can make it if he strives
hard enough” despite limited resources and means to achieve the goals.
The thing is structural: members of the young working class and under-
class are strained by the lack of means to achieve economic advancement.
They do not necessarily accept a nonglamorous life of proletarian toil,
and thus the delinquent subcultures are formed, defying authorities and
espousing alternative normative systems. For Cohen, this delinquent sub-
culture is an alternative to the proletarian hard labor, middle-class bore-
dom, and punishment as described earlier. It is a form of escapism, diag-
nosed by the sociology of crime outside the discourse of revolutionary
activity. The delinquency of proletarian youth escaping family and
school discipline raised some skeptical eyebrows asking where all the fun
and games had gone in such a serious sociological structuralism of the
wretched of the suburbs:
First, Cloward and Ohlin seem to be confusing the justificatory func-
tion of delinquent subcultures with their causation. All of these beliefs
on the part of gang delinquents have been repeatedly reported in the
literature, but, by the very argument of Delinquency and Opportunity,
it is impossible to tell whether they constitute compensatory ideology
or description of objective reality. . . . Cohen’s boys and Cloward and
Ohlin’s boys are driven by grim economic and psychic necessity into
rebellion. It seems peculiar that modern analysts have stopped assum-
ing that “evil” can be fun and see gang delinquency as arising only
when boys are driven away from “good.” (Bordua 1961, 133, 136)
This develops more strongly in the sociology of crime of the Left, in
the sense that the causes of crime are primarily seen in repression and
stigmatization done by the authorities instead of the preferred approach
of more understanding and less repression, at least to the less dangerous
and often nonviolent forms of delinquency. Labeling theory, as we shall
see, wants to draw a sharp line between the two matryoshkas: the sociolo-
gy of delinquency and the penal policy dealing with crime. One strand is
already presented. The sociology of delinquency and misdemeanors
turns into the sociology of subculture and counterculture where crime
associated with informal groups becomes a form of alternative socializa-
tion in disorganized communities. The ontological point is not that some-
one is bad but that he is structurally driven into alternative normative
and practical universes not liked by the establishment. Gangs are not a
product of evil, amoral families, and criminogenic foreign cultures but of
418 Chapter 7

societal structure of unequal distribution and processes of social disor-

ganization. Secondly, the labeling theory developed by Lemert and Beck-
er brings to the extreme the ideas of symbolic interactionism of defining
the situation and acting accordingly.
As Mead long ago theorized finding his way even to Habermas’s
voluminous theories of communicative action incorporated into a wider
frame of societal functionalism, there is such thing as the general(ized)
other and the metaphorical mirror reflecting the self in the eyes of others.
When small transgressors and undisciplined children are constantly la-
beled as bad, they learn their role and start acting accordingly. This is the
secondary deviation adding to the primary one, as Lemert explained—
the defensive posture where the acceptance of the imposed role leads to
the paths of a criminal career. From that theoretical position, of course,
very liberal penal policy is to be inferred. If our ontology is not one of evil
calculators but fragile listeners and role-players measuring themselves in
the eyes of the others, penal policy should be permissive especially to the
young. So it is not the boot camp or scared straight but the careful ap-
proach that accepts the position of Lemert’s theory of secondary devia-
tion. The stigmatizing effect that comes out of early contact with criminal
justice leads to a path of crime, while simple toleration or rehabilitational
programs and, for the most persistent, programs of supervision and cor-
rection in the community might minimize the damage. The point is, in
any case, to do it outside of the justice system if possible (Pitts 2003, 143)
because “Once a reputation has been tarnished, a criminal record ac-
quired and conventional opportunities narrowed, the young person may
reason that he no longer has anything to lose by being caught” (Clark
2006, 215).
This is only a short sketch of some classic theories. It is a world of
mutually communicative and often compatible theories of control, label-
ing, broken ties, alternative socializations, drifting into crime, and so on
that come into play as an academic basis of the “anthropological tech-
niques” (Foucault 2000c, 462–63) employed when younger subjects break
the law. 3 But the idea is not to develop this further or expound penolog-
ical correlates of this criminological thought, despite all the interesting
discursive and ontological variations. The point is to probe the extremes.
Two of those are confronted in the following section. The structural con-
text is targeted by Marxist or, to avoid the scary M-word, radical crimi-
nology, while rational choice informing the Reagan era and its tough-on-
crime policies went exactly the other way, not seeing the lost children in
the strayed men, as the writer William Saroyan did, but selfish profit
maximizers who disclaim any leniency on the burden of the public good
and the well-being of others. In more dramatic and politically offensive
formulae, it is the former Hollywood actor’s world of “strapping young
bucks” using every opportunity given to them by permissive structures
of a society drifting into socialism.
 Criminology 419

MARXISM AND RATIONAL CHOICE: THE LEFT AND RIGHT POLES

OF THE SOCIAL SCIENCE OF CRIME

Kieślowski’s idealistic lawyer doesn’t have to specify the source quoted

in his bar exam in 1980s Poland. As we have seen in the short discussion
of Marxism and the death penalty, ever since Cain, punishment has not
done much good; according to Marx, writing for the New York Daily
Tribune in the mid-nineteenth century, punishment doesn’t intimidate, it
doesn’t correct. The gallows of Britain and Marx’s enthusiasm for crimi-
nal statistics give him reasons to say that punishment in general doesn’t
work. Moreover, it is immoral, one of the ideological perversions of a
capitalist society culminating in the philosophical thought of German
idealism that, as usual, has to be reversed to stand on its head. Their ideas
are not governing the history of material relations, of real lives struggling
in society and economy, but are abstract ruses for class interests, a reflec-
tion of easiness of thinking and writing from the position of regime serv-
ing intellectuals. It is The German Ideology, co-written with Engels, that
explains this, left to the “the gnawing criticism of the mice,” as the pref-
ace to the Critique of Political Economy specifies, also providing the general
framework for Marxist theory of crime and punishment: “In studying
such transformations it is always necessary to distinguish between the
material transformation of the economic conditions of production, which
can be determined with the precision of natural science, and the legal,
political, religious, artistic or philosophic—in short, ideological forms in
which men become conscious of this conflict and fight it out” (Marx
1859). This also goes for crime, punishment, violence, and state violence:
it is part of the overarching class conflict shaping society and its dis-
courses that reflect it or in any case have a function in the hegemonic
struggle, for example, in the Gramscian variant of the doctrine.
“Now what right have you to punish me for the amelioration or intim-
idation of others?” (Marx 1853), asks Marx vehemently, claiming there is
no such right. Marxism can be taken as a paroxysm of sociology of crime
pointing to crime’s political economy. Violent action, theft, and corrup-
tion are in essence nothing else but political economy, a consequence of
structural conditions shaping people’s lives. As Richard Quinney, author
of works with telling titles such as The Social Reality of Crime (1970), Cri-
tique of Legal Order (1974), and Class, State and Crime (1980), and one of the
champions of radical criminology, has put it: “The question of what pre-
cedes crime is far more significant to our understanding than the act of
crime itself. Crime is the reflection of something larger and deeper”
(Quinney 1995, 147). It is, first, human nature that is, second, transposed
to structure. The criminals are not “free and self-determined beings,” as
Hegel would have it (or perhaps some liberal much more naïve then
Hegel as a theorist of collective Sittlichkeit, civil society, and the state), but
humans in an unjust system of oppression. The ontology is not a de-
420 Chapter 7

prived human nature of original sin but a depravity by uncivilized soci-

ety, “crime can result when basic or universal human needs are frustrated”
(Grose and Groves 1988, 145). Social conditions prevent people from self-
development and self-realization and, as in the strain theory but not in a
simple instrumentalist manner, they find other means. It is an ontological
narrative combining this deprivation with a Hegelian self-realization in
the next step; it is the master and slave dialectic, with the latter a “crimi-
nal” in search of recognition with his crime, in a sociological theory in
which thinking of others and stigma defines one’s existence. “They think,
therefore I am” as Grose and Groves point out in the summary of the
labeling theory. Religion is opium for the masses and so is crime the
means to acquire goods and to self-actualize when there are no legitimate
opportunities in certain social conditions to satisfy needs that are quite
universal (Grose and Groves 1988, 145). It is prison ethnography and the
counterculture of the gang.
And this structure, the one of capitalism, as in the writings of Dutch
Marxist Bonger, creates specific sets of crimes stemming either from this
economic and political deprivation of the classes struggling to make their
living without the ownership of means of production or from its moral
climate “evolving” from the Protestant ethic toward selfish amorality, as
in The Wolf of Wall Street or the earlier Stone’s (simply) Wall Street, oppos-
ing depraved stock-brokering yuppies to the morally decent American
working class. As an empirical basis (how things are in the world, with a
consequence for the moral and political theory), this is used in one of the
most influential texts on Marxism and retributive punishment, written by
Jeffrie Murphy (1973). It consists of two simple steps in a logically sound
maneuver. One is to accept retributive theory as a morally defensible
theory of punishment (Murphy 1973, 221). The second is, if we accept the
first, to argue that if there is no autonomy presupposed by the theory,
than it cannot be applied as morally defensible. And it may be so since
the societal conditions at least partly, then and today, correspond to the
picture provided by Willem Bonger’s Criminality and Economic Conditions.
As a consequence, capitalist societies lack the moral right to punish ac-
cording to Murphy: Kant is OK, but Bonger trumps him.
Capitalism works on greed and a maximization of profit. What Adam
Smith saw as the hidden hand, and early Lindblom applied to govern-
ment as bargaining in the function of the pluralist common good, in this
discourse leads to crime as an endemic part of the system. The world is
not a Königsbergian pietistic philosophical seminar but a sea full of
sharks, as diagnosed in the early twentieth century or in the early twenty-
first, a world with a number of white collar and corporate immoralities,
and moral panics produced by the media serving class interest, as do the
penal law and policies. It is the world of the needy and greedy doing
crime, two poles of socially induced egoism and violent action emerge:
unfulfilled needs and squalor on the one side, and greed and selfishness
 Criminology 421

of the upper class on the other. It is the world of Scorsese’s wolves meet-
ing Gorky’s vodka underclass. The class character of penal law, “selective
with regard to the social characteristics of the agents” (Steinert 1978, 186),
is a fundamental postulate of this discourse, and its criminology can be
labeled as an anticapitalist criminology (van Zyl Smit 1989, 237). The
retribution doesn’t work as a just means or an end in a world of bias,
inequality, and exploitation, and criminology must unmask this, as
Brecht’s Dreigroschenoper sees criminals not in those robbing banks but in
those running them. The question is not the one of harmonious systems
and penal policy functions, as in the discourse of the pupils of Durkheim
or Parsons; a blunter Marxist approach simply asks cui bono, “Who profits
from what?” when it comes to penal law and punishment (Steinert 1978,
167). And the empirical analyses then try to show that every piece of
penal legislation is there to forward the interests of the ruling elite.
There are two responses to this. One is the traditional revolutionary
that has, as things look right now, for various historical and political
reasons, run out of steam as an effective discourse of social change. The
critique of Feuerbach expressed in the eleventh thesis—in the recent film,
young Marx (Le jeune Karl Marx, 2017) comes to it after vomiting on the
streets of Paris, seemingly cursed with the weaker stomach for alcohol
than Engels, the dandy—is simply applied to punishment: The philoso-
phers of punishment only interpreted the world but the point is to
change it (Clarke 1982, 53–54). The idea is that no theory resolves the
problem of criminal justice with a material basis of capitalism as the key
cause of criminality: it is an explicit argument against genetic, psycholog-
ical, and other causes. The reasons are social, specifically political-eco-
nomic as diagnosed by Marxism, which warrants politically guided so-
cial change as a response (Taylor, Walton, and Young 1974). Only a dif-
ferent society would eliminate the structural forces that produce crime by
treating human beings as commodities. This is to be changed only by
political action. Bonger’s criminals obviously have energy that could be
used for revolution, as the proles in Orwell’s 1984 observed by the politi-
cized protagonists as a strange distant species invested with political
hope may once wake up from inculcations of “primitive patriotism” and
change their miserable existence paired with “a vast amount of criminal-
ity” that is tolerated since it isn’t politically subversive (Orwell 1992, 72).
That classical blueprint has remained unchanged for more than a century
and a half. Unlike old Lindblom’s ideas of cooperation and mutual ad-
justment with a few points of competition in the global miracle of the
market system (Lindblom 2001), Engels, who delivered his speeches in
Elberfeld in one February of the mid-nineteenth century, saw societies of
market competition not verging far from war:
The individual capitalist is involved in struggle with all the other capi-
talists; the individual worker with all the other workers; all capitalists
422 Chapter 7

fight against the workers just as the mass of workers in their turn have,
of necessity, to fight against the mass of capitalists. In this war of all
against all, in this general confusion and mutual exploitation, the es-
sence of present-day bourgeois society is to be found. But, gentlemen,
such an unregulated economic system must, in the long run, lead to the
most disastrous results for society. (Engels 1845)
This defining moment of practical revolutionary rhetoric logically de-
rived from the theoretical corpus by Marx and Engels, hypostazing Hob-
besian metaphor into a social war, saw crime as perfectly logical conse-
quence of this social war, and penal systems of liberal democracies as its
gruesome Überbau. Opposed to it was the panacea of communism. As the
metaphors we live by replace war with peace, in that discourse we also
see the evolution of crime in capitalism elaborated by Bonger echoing the
fade-out of Mike Oldfield’s song sung by Barry Palmer:
We eliminate the contradiction between the individual man and all
others, we counterpose social peace to social war, we put the axe to the
root of crime—and thereby render the greatest, by far the greatest, part
of the present activity of the administrative and judicial bodies super-
fluous. Even now crimes of passion are becoming fewer and fewer in
comparison with calculated crimes, crimes of interest—crimes against
persons are declining, crimes against property are on the increase. (En-
gels 1845) 4
And if revolution doesn’t work to account for the problem of crime,
perhaps evolution is the solution, a parliamentary struggle for social
rights and social policies, in a revisionist account leaving the perhaps not-
so-destructive dynamics at work, but also working hard politically to
ameliorate it, following Roosevelt’s 1944 State of the Union address
claiming that “necessitous men are not free men.” And maybe even spiri-
tually, as this change of position is sometimes merged with New Age
tones of calls for a spiritual awakening in the later editions of Quinney’s
works (see Milovanović 2007). The revolutionary call to change replaces
strong wine with insipid vinegar: arms with New Age preaching, and
orthodox Marxism with Fromm’s Freudo-Marxism, where capitalism ap-
pears as fundamentally focused on “to have,” making it an insatiable and
destructive social system in contrast to the more contemplative “to be”
associated with socialist humanism: “In the flux of change and imperma-
nence, in this human world, we mortals can cling to nothing,” claimed
Quinney, adding that “Peace is the way” and that “Punishment is not the
way of peace” (Quinney 1995, 153–54). If society cannot be changed, then
at least, paired with calls for peacemaking criminology (Pepinsky and
Quinney 1991), penal policy should be ameliorated as an area with its
own logic, as postulated by the trade-off triangles between punishment’s
quickness, strictness, and safety for the accused (see Pepinsky 1978,
316–17, 325). And, voilà, from the class conflict we have arrived at a new
 Criminology 423

age of post-Marxist constitutive criminology (Stuart and Milovanović

1996). More mundanely, it is Currie’s Crime and Punishment in America
issuing a call for active labor market policies, a strong health care and
child care together with rehabilitation and treatment instead of penal
retribution and community policing, earning him, in terms of US political
discourse, the label of “[p]erhaps the most noted advocate of the liberal
ideology of crime and criminal justice” (Marion and Oliver 2011, 49). Or
in the more recent Wacquant’s phrasing, it is the call to strengthen “the
Left hand of the state” by strengthening social and economic rights in-
stead of “punishing the poor” (Wacquant 2009).
Instead of revolution, whether of thought or a more mundane one,
following the precepts of German Ideology where life determines con-
sciousness, and the quoted foreword to the Critique of Political Economy,
with the idea of changing criminal impulses by a thorough change of the
organization of society, rational choice offered different ideas about
crime. It was again all about economy, not built on the sociology of
classes this time but on individual economic beings, autonomous rational
actors who tend to take an opportunity when it appears, calculating im-
plicitly the opportunity costs as well as other things having to do with
profit and the maximization of individual interest. If the thing is there on
the table unguarded, and there is a chance to get away with it or solve
some kind of an implicit or explicit economic problem through crime,
then we have a potential criminal lurking in every one of us, maybe even
more so in utopian phalansteries than in naturally regulated systems
where sanctions emerge as a response to crime instead of the naïve politi-
cal architectures of utopianism.
The ontology explaining crime within this discourse is simple, not
moving much from some examples of fiction or theology, but it doesn’t
moralize change. It takes this ontology—not so strange to Marxism, after
all, which saw it as alienated individual conscious, that is, a specific case
in a more general specter of human possibilities—into account to explain
and offer policy solutions on different levels. The implied normative
framework is that of freedom of action, that is, of liberalism. Crime pays
off, and it will happen if there is no sanction. It is understood as a rational
choice of the criminal, as explained in the classic written by Wilson and
Herrnstein (1985). Wilson was quite blunt in his ontology opting for the
policy of incapacitation, at least for the academic and political taste of
some: “Wicked people exist. Nothing avails except to set them apart from
innocent people” (Wilson 1983, 260). Quoted in Garland (2001, 131), this
quip is in terms of style, ideology, and psychology described as “casual,
reactionary insistence,” while Garland also adds that it “dismisses the
whole project of a social scientific criminology,” replacing it with com-
mon sense. Wilson’s ontology, however, continues into the part omitted
by Garland, which makes of it a piece of conservative rational choice
about crime beyond neo-Lombrosianism: “And many people, neither
424 Chapter 7

wicked nor innocent, but watchful, dissembling, and calculating of their

opportunities, ponder our reaction to wickedness as a cue to what they
might profitably do. We have trifled with the wicked, made sport of the
innocent, and encouraged the calculators. Justice suffers, and so we all”
(Wilson 1983, 260). This position opens the choice for criminology be-
tween a less theoretically ambitious approach, a pragmatism of crime
control acknowledging that crime happens with people as they are, and a
more consequent theorizing of the economy of crime with the tools of
economics as a potent imperial discipline readily entering the turf of
other social sciences. It is the case of a conservative professor and Nobel
Prize winner thinking too much about his parking calculations and policy
choices by a rational government aimed at achieving a certain tolerable
level of crime. As the reader has guessed, we’re back to Garry Becker.
Situational criminology is a label that can be used in a more general
and pragmatic manner. It is a stance that abandons higher-level theoreti-
cal speculations and works in a given situation. The discourse shifts re-
sponsibility from the government of grand programs to the governmen-
tality of the individuals, and opts for down-to-earth policy solutions. This
is best summarized in an analogy between crime prevention and the care
for one’s own body, which serves as a conceptual metaphor that struc-
tures the field of crime and crime control: “Intellectualizations about the
“criminogenic” nature of societies, the sources of evil within them and
the motivational bases therefore probably are less fruitful than simply to
conclude that bad things happen—not just crime but additional health
threats. Like exercise and a good diet, personal engagement in managing
victimization risk may help to avoid meeting with it” (Koski and Batch-
elder 2003).
This approach is, of course, normatively ambivalent and may lead to a
“live and let live” acknowledgment of the natural rate of crime that is
dealt with by the victims as rational agents governing themselves to
counter crime. Or it may even metastasize into the blunter commonsense
discourse that simply blames the victim. A relatively benign personal
experience may serve here as a crime and governmentality lecture. I was
once as a young student reprimanded by police officers who came to a
crime scene. We called them to make a record of a broken car window
and a stolen backpack, near Zagreb’s Jarun Lake in some distant times
when another love was in town and there was some more post-transition-
al property crime in the air. “You’re guilty,” the cop thundered pedagogi-
cally, “for leaving the backpack on the seat on the visible place and not
hiding it in the trunk.” Luckily, the probable junkie fishermen fishing for
the backpacks did not profit much since there was not much money in
the backpack and my sophomoric German idealism remark also did not
impress the police. “Isn’t the guy who stole it guilty? Shouldn’t you stop
him?” I pondered reluctantly, still not transformed into a homo prudens
(Garland 2001, 189) expected by situational criminology transferring
 Criminology 425

costs of protection to an end user. Whatever the ultimate moral and legal
implications of various sides and faces of situational criminology, its dis-
course and policy operate with simple things: there are citizen meetings
to coordinate crime prevention, there are police working in the commu-
nity, and so on. It may, for example, be as simple down-to-earth point,
like the one about brawls and violent outbursts in alcohol-soaked places
such as bars. If a simple research shows that proximity of violent and
nonviolent bars trumps the position that violence is an outcome of cri-
minogenic environment of a social milieu (a poor quartier or a “no-go”
zone), then solutions are empirically found and perhaps normatively
suggested in techniques of bar management displaying an enviable ba-
roque arsenal: “Cincinnati bar managers used a variety of strategies to
prevent violent incidents, including using bouncers, training servers to
limit patron over-intoxication, and posting rules of conduct. Others ap-
plied unique strategies such as chaining a large dog behind the bar, keep-
ing a pool cue in plain sight and drawing attention to it if patrons show
aggression, and not allowing cursing in their establishment” (Eck and
Madensen 2008, 122).
Or, to continue with down-to-earth harm reduction, the patrols that
help drunkards before some bad things happen and repressive apparatus
is put in action in such places as Amsterdam fall within the discourse of
this type of criminology interested in community safety and protection.
On the other hand, the rational choice criminology without too sharp
breaks and ruptures to the criminology of control that demands tougher
policies. The metaphors of this discourse are well known. The first is the
broken windows theory. The idea is environmental and psychological
and thus readily available for the commonsense acceptance and scrutiny.
Broken windows symbolize urban decay and send a message that unso-
cial behavior is tolerated. It is a norm. This creates almost sociological
incentives for criminals to act, to attack and snatch purses, let’s say. It
leads to the second metaphor, however, not associated with the urban
planning but with police work. It is the infamous zero-tolerance policy,
historically associated with 1990s New York. As Rudi Giuliani’s police
commissioner and “proactive” policing proponent William Bratton put it:
We could solve all the murders we liked, but if the average citizen was
running a gauntlet of panhandlers every day on his way to and from
work, he would want that issue solved. . . . Previous police administra-
tions had been handcuffed by restrictions. We took the handcuffs
off. . . . If you peed in the street, you were going to jail. We were going
to fix the broken windows and prevent anyone from breaking them
again. (Bratton 1998, 228, quoted in Jones and Newburn 2002, 186)
The squeegee people and panhandlers were vigorously repressed in a
police siege to enforce public order without compromise. The idea was to
react repressively to all the small infractions, which would in turn discou-
426 Chapter 7

rage the bigger ones. The causal chains are tricky as usual, and politics
and ideologies tend to highlight or pass over some intermediary vari-
ables, closing an eye to the obvious or to the other plausible explanations.
Obviously I don’t have the ambition to solve the problem here of how
much police repression on some level influences other things, in what
context, and at what cost. Whether it is a genre of efficient puritanism or
repression of the underclass legitimized with a bigger fish to catch who
have nothing to do with the smaller ones—everything neatly packaged
under the nice euphemism of the quality-of-life policing or, ironically,
“the science of kicking ass” (Parenti 2000, 69–89) I leave to the reader to
think, consult the relevant criminological research on the issue, and de-
cide—starting, for example, from an useful assessment of the broken win-
dows “hypothesis” warranting the tougher policing of misdemeanors
(Harcourt and Ludwig 2006).
Instead of a less ambitious but efficient option, another one is to build
a thorough framework of an economic empire using the methodology of
economics, that is, of rational choice, in family life, group relations, and
crime. This approach also pretends to be useful and it certainly is to reach
some goals. It was launched to fame by Garry Becker (Becker 1968) and
there is a useful early discussion of it in Foucault’s lectures on liberalism,
a bit mis-termed The Birth of Biopolitics, dealing with the question of is it
legitimate to “apply the mesh, the schema and the model of homo oeco-
nomicus on every actor that is not solely economical” (Foucault 2004,
272). 5 If it is accepted that humans are economic rational beings, then the
conceptual apparatus of economy applies to crime, including violent
crime, and to all the tools of penal policy as the tools of the state as an
actor applying its force, taxing, buying, and selling on the market. And
crime rate then appears as the result of forces of supply and demand,
including elasticity and other concepts of economics into this equation.
For example, as Ehrlich summarizes it, the crime rate or, to switch to the
jargon of economics,
the equilibrium flow of offenses results from the interaction between
aggregate supply of offenses, direct or derived demand for offenses
(through self-protection), and optimal public enforcement, which oper-
ates like a tax on criminal activity. One important application concerns
a comparison of deterrence, incapacitation, and rehabilitation as instru-
ments of crime control. One cannot assess the efficacy of deterring
sanctions merely by the elasticity of the aggregate supply-of-offenses
schedule, as it depends on the elasticity of the private demand schedule
as well. (Ehrlich 2007)
Crime is a sort of negative externality that has to be controlled by the
state. There is perhaps psychopathology on the margins but these theo-
rists are interested in the whole composed of rational individuals and for
those it is economy that works as an explanatory paradigm of the aggre-
 Criminology 427

gate phenomena, against the tradition of Lombrosian anthropology of

crime. Its ontology is one of neoclassical economics, of Samuelson’s eco-
nomics textbook, or more fundamentally the one of Austrian liberal eco-
nomics of Mises and Hayek that used terms such as praxeology to denote
the analysis of purposeful behavior and catallactics to analyze the inter-
play of such individuals with the market exchange as a paradigm. It is
ultimately an ontology of homunculus, an ideal typical human puppet of
the general economy, as in Alfred Schütz’s phenomenological sociology
discussed briefly in the methodological passages in the comparative
chapter. Or, in Weberian terms, the paradigm operates with ideal types
as empirical abstractions that ultimately, on the bottom of social action,
have some purposeful basis of everyday human activity however far
away from the methodological house of models, graphs, and calculations
this may seem. Its normativity is the one of liberalism, the laissez-faire of
French physiocrats with crime not being bad because of moralization, but
as a rational strategy imposing grave costs on actions and interests of
others. Maybe economy is “an atheist discipline,” a discipline “without
God” (Foucault 2004, 285–86), but opposition to absolutism doesn’t mean
that it is value free—which leads us to the conclusion of this section.
As is clear, one ontology of economic basis and class relations calls for
a sort of leftist policy or revolution, changing society to change crime.
The opposite of this may be the Burkean conservatism of a subtle balance
of a tradition against modernist designs of those, like Beccaria or puritan
ways of strict punishment, want to keep the cleanliness of the scared
straight collective. But here it is imperium econonomica—Becker, for the
record, preferred fines to prison and other fiscal complications, which is
not surprising for an economist—a Benthamite picture of interests, seeing
crime as an interest-governed action that is subject to market forces as are
other types of purposeful action, and the state is here to curb it, in the
way as it does with pollution, as any externality for the economic world
in general. I neither discuss the scope of empirical application of these
discourses nor their consequences—they may rightly seem grossly
counterfactual and a bit heedless to a worried reader—but point to their
possibilities of accommodating the same practical policies and actions, at
least in the middle ground.
This analysis of cost, benefits, effectiveness, and efficacy of the state’s
penal policy may accommodate many of the earlier described strategies,
both of political and private agents acting with repression to prevent
crime. That state may allow for freedom of speech, even if society and
academic institutions don’t, in various more or less subtle forms of cen-
sorship and auto-censorship, but it comes down to a Cincinnati bar
where a manager points to a dog or a stick or bans foul language in the
governance of local peacekeeping against violent incidents. It is the equi-
librium of governing through crime, to use Simon’s phrase, and against
crime in what is presented as the natural order of actions, calculating
428 Chapter 7

costs and benefits, with the state weighing in with its arsenal of dogs,
sticks, and carrots when necessary. The Marxist state, a dictatorship of
the proletariat, on the other hand, will work on the assumption that it is
the environment building of a socialist man and society that are impor-
tant, against the frog’s-eye logic of the Cincinnati bars and adaptive reac-
tions. The irony is in gross repression of various practices and ways of life
ideologically banned; it is Gulag archipelago and extrajudicial killings,
prison terms for verbal delicts and counterrevolutionary activity, while
Western criminology is demoted to the status of decadent bourgeois sci-
ence. The dismantling of sorrow may wait for the closing chapter but
dismantling of real socialism in Eastern Europe is not such an antiquarian
event. However, before discussing these discourses as tools and murmur-
ings of politics, I want to expand the picture a bit and employ a pragmatic
metaphor that the readers could hopefully find convincing.

A FEW MORE DISCOURSES: INTO THE RABBIT HOLE OF NATURAL

SCIENCE AND BACK TO CRIME PREVENTION THROUGH POETRY

If economics is imperial, social science is also. It is one of the bigger

ironies, taking into account its weakness in predicting and shaping social
life, not living up to the expectations of Comte’s adage. It is one of the big
themes in the academia; here I cannot do any justice to it and it almost
goes without saying that, as a legitimizing political discourse, it may
work in various ways just as criminological discourse did, following Gar-
land who was sensitive about the distinction between operational knowl-
edge of criminology as a working discourse versus various statements
that can be said, academically or otherwise, but it goes without effect in
terms of “real social practices” (Garland 2001, 25). It may reproduce pow-
er—or weakness, in the discourse of those within the political discourses
on the Right who see mainstream political science and sociology as fid-
dling while Rome burns, not knowing that they do it. Anyway, if for the
sake of the argument we accept that social science is only part of the
picture in a scientific attempt to explain (away) crime and build a peace-
ful society, if such is desired, some other discourses enter the picture.
Criminology, in other words, is not only a social science, and chapter 8
points out that science is not the only discourse on violence and punish-
ment. Even in this short chapter, it is something that is worth reflecting
upon, trying to get some breathing space at safe distance from the big
group-think room of social sciences that tends to fetishize the cultural
and the social.
If one pole is represented by the extreme of biologism or even physi-
calism, the idea of deducing everything in social, cultural, and ethical
from the natural, throwing social science in the trash bin or beauty parlor
of les belles lettres and humanities, the other is the narcissism of small
 Criminology 429

differences. It means that the petty bickering between the social science
disciplines tends to leave other important inputs in the shadows. These
“other” discourses are something useful and used in the thinking on
crime, in its interdisciplinary explanation, in bits and pieces of penal
policy design and penological reflection on punishment and correction of
the subjects caught in the mesh of penal policy. The metaphor from Lewis
Carroll’s classic points to the gradual entrance into another alien area
through the border zone, as the one that his books, pictures, and amateur
photography both shyly and boldly explored. From the social science
point of view, it is an exit from the social to the realm of other obscure
and potent forces. I’ll add some notes on psychology, then anthropology,
and finally biology, falling all the way down through the rabbit hole. If
one accepts biologism as a starting point, then it is the other metaphor, a
sort of peeling of the onion. After some more simple remarks on causes
and effects that are, of course, socially mediated but in their essence are
not in the narrow focus of social sciences as such, I return to the creation
of penal policy through a discipline that is neither natural nor social. At
the end of the section, I offer a normative wrap-up through the form of a
telling an anecdote.
At the most general level, psychology as the scholarly investigation of
the human psyche offers many discourses and classical readings on the
matter here, from the psychoanalytical treatment of a compulsion to con-
fess (Reik 1959) to the more up-to-date empirical experiments on, for
example, the relations between the precision of evidence and the prob-
ability of confession of a homo psychologicus confronted with them (Keb-
bel, Hurren, and Roberts 2006). However, I offer a few constrained exam-
ples, mostly in in a narrower genre of behavioral psychology. Psychology
then, for the purposes of this illustration, is a pragmatic art that has
developed a set of its own categories and policy clues to treat the problem
of violence. Moralization of the ethical discourse is discarded, as is the
idea of society as a cause (of crime) offered by sociological discourse, not
to speak of its ruder ideological versions of conservative and socialist
policies building on the individual responsibility of autonomous subjects
or on the idea of social conditions causing violence. Morality and society
are replaced by syndromes. Someone is not disobedient, bad, rebellious,
or exhibiting some kind of lecherous and vile proclivities because of some
innate evil rendered in the moralistic or religious categories. Nor is our
criminal subject hardened into darkness by injustice of the harsh nine-
teenth-century penology experienced by galley slave Jean Valjean, ar-
dently rowing in a recent musical. Instead we have, for example, ADHD
(attention deficit hyperactivity disorder), APD (antisocial personality dis-
order), ODD (oppositional defiant disorder), or more generally, CD (con-
duct disorder). What is the result of this, at least on the level of idealist
logical reasoning drawing the consequences within the framework of a
simple exemplary blueprint? Moral education, legal sanction, and social
430 Chapter 7

reform are replaced by early diagnostics, as psychology works from an

early age, and if we add a bit of contemporary psychiatry dealing (with)
the psychoactive drugs, as in Huxley’s Pala, it is pills for the Peter Pans:
medicament therapy to those who do not respond to behavioral training
programs. Crime is prevented through early conditioning by behavioral
therapists who train problematic or risky subjects through programs such
as Aggression Replacement Training (ART), I Can Problem Solve (ICPS),
Responding in Peaceful and Positive Ways (RIPP), Resolving Conflicts
Creatively (RCC), Promoting Alternative Thinking Strategies (PATHS),
the Good Behavior Game (GBG), Effective Behavior Support (EBS), and
so on (Mattaini and McGuire 2006).
This illustrative string that wants to deal with violence actively before
the law and outside of ethics, or perhaps by replacing traditional ethics
with a new ethic and new vocabulary, rests on a simple distinction estab-
lished in the literature. Since this is probing of the extremes, it is appro-
priate to mention that “famous cases of serial killers popularized by the
media, including Jeffrey Dahmer, Theodore Bundy, Edmund Kemper III,
Albert DeSalvo, and David Berkowitz, have revealed that these individu-
als had histories of abusing, torturing, and killing animals” (Tallichet and
Hensley 2004, 304). However, this sadistic persistence is only an extreme
of a wider and less dramatic aggregate. The psychological literature
(Moffit et al. 1996) in that sense makes a simple distinction between a
violent subject formed at an early age and those who develop such ten-
dencies later. These early subjects are hyperactive, have difficulties in
learning, and exhibit early age behavioral disorders. They are so-called
LCPs, “life course persistent” transgressors. The others, less problematic,
start with delinquency in adolescence and later usually return to a peace-
ful and disciplined life path, as those drinking beer and playing bingo in
the film adaption of Irvine Welsh’s Trainspotting, a piece following a
group of Edinburgh’s heroin addicts. These are ALs, “adolescence limit-
ed” offenders, who exhibit problematic behavior. It is especially impor-
tant that experts get their hands on the first group early on to prevent
serious damages. It is the early diagnostic of Pala.
The thing to note is that primary prevention through behavioral thera-
py is but one possible response, not to speak of psychiatry and various
medications administered to children to alter their behavioral patterns
through the chemistry of the brain. The other more traditional response is
provided by the conservative discourse that speaks of the illusions of the
liberal education and how permissive pedagogy brings demise to society.
Here the response is placed in the family as a traditional locus of author-
ity. The response of the sociological discourse, perhaps to both of these
approaches, is in highlighting the “fallacy of autonomy—the belief that
what goes on inside the family can usefully be separated from the forces
that affect it from the outside: the larger social context in which families
are embedded for better” (Currie 1985, 185, quoted in Kramer 2000, 127).
 Criminology 431

The society and family, together with a cycle of authoritarian personal-

ities obeying discipline (and imposing it on those below), is something
that is reflected upon, as we have seen, in Haneke’s White Ribbon. One of
the classical interesting psychological speculations in this vein, combin-
ing psychoanalysis and Margaret Mead like normative cultural anthro-
pology, builds on the motif of tactile experiences beyond Canetti’s abhor-
rence induced by the often destructive movement of the masses: Prescott
(1975) associated violence with early stomatosensory deprivation in hand
with physical punishment, and generally with the repression of physical
pleasure. It is a proto-Lakoffian type of binary between nurturant parent
and punitive father, arguing directly against conservative upbringing
and religions that advocate stern punishment together with a neoplaton-
ist ascetic posture that favors soul over body. 6
Although psychological discourse offers a focus on the psychological
turbulences of the young age, the correlation of lesser criminality and
older age, at least when physical violence is at stake, is short of self-
explanatory. One just needs to take a peek at the pyramids of sex and age
diagrams becoming bellied barrels or perhaps one day reverse pyramids
of aged societies to see certain forms of crime dropping in parallel crime
statistics. The perpetrators are energetic and aggressive enough to do
harm when young and this wanes with the coming of old age—a simple
fact of physical weakness, a soul growing old and complacent in its hab-
its. This motif, recognizable from the aesthetical production of literature
and from life experience of about any subject who has grown old, is in
criminology known as “desistence theory” (Laub and Sampson 1993).
There are hardened criminals whose habitus is one of “in and out of
prison,” and there are professional criminal careers, just as there are old
aggressive bullies, but the point here is the cohorts of young and aggres-
sive subjects, usually males endowed with the biological malice of fresh
testosterone, as in Houellebecq, doing bad stuff to those weaker.
There are a few points to be made in this brief note. First, this is an
anthropological line of thinking and not one of cultural anthropology or a
return to Lombrosian craniometry. It is not the latter because it is fairly
general. For example, the idea of the case about Croatia was to say some-
thing about the relationship between politics and violence in a statemak-
ing context. But it had an implicit basis in humanity as it for a long time
was, and is. The specific claim about humanity is that “the age distribu-
tion of crime is invariant across social and cultural conditions” (Hirschi
and Gottfredson 1983, 554), which means that the theory of desistence is
in its core immune or inimical to particular sociologizations. The explana-
tion in Croatian and other concrete cases offers a combination of politics
and anthropology in this sense. A good starting point to illustrate this
duality is found in an anthropological and at the same time political
statement made by the late Eric Hobsbawm in an interview for Croatian
newspapers. Three and a half years before his death Hobsbawm stated:
432 Chapter 7

“The basic humanity has not changed throughout centuries, perhaps mil-
lennia. The thing that has changed is historical context which fosters
good sides or enables those that are bad. As you may well know, young-
sters who release sexual energy, understandable for their age, in symboli-
cal contests such as sports, can behave completely different when states
are failing and when they can demonstrate their power with an AK-47”
(Hobsbawm 2007).
According to this statement that speaks about violence, a part of vio-
lence is politically induced and, as I argue in the case in the fourth chap-
ter, tolerated and sometimes legitimated as punishment. Some of the
causes of violent crime and forms of penal policy must thus be sought in
the orders of power (Foucauldian framework offers only one possible set
of analytical tools to grasp these constellations). States fail and new ones
are erected; the birth and the dismantling of a political structure are asso-
ciated with collective political projects where, as Hobsbawm put it, pow-
er is demonstrated in violent ways. This argument makes uses of anthro-
pology, with or without Boorman’s Zardoz sexual moment in it, as de-
scribed by the great historian, which is not relevant here. The point is to
put various political and other arguments within the general context of
the anthropology of desistence or other things in search for the explana-
tions of violence and punishment.
Second, to develop the opposition of anthropology and sociology: the
specific anthropological point here claims not to be cultural because it
transcends particular contexts and societies. A cultural approach, ac-
cepted or disputed by the discourses playing on the card of economy,
class, and anomie against the Pandora’s box of ethnic tensions, will high-
light “immersion in an environment where violence is the favored meth-
od of dispute resolution,” and the “[s]ubcultural rules focus on codes of
honor, retribution, and group membership” (Baron 2003, 22, 23). As in
John Singleton’s 1991 film Boyz n the Hood, it is socialization into violent
gangs that causes violence, often in the form of their lethal showdowns in
the ghetto governed by “the code of the streets,” where the toughest and
the baddest prevail, while punitive street justice also involves an expres-
sive function (Anderson 1999, 2002; Davis 2008). Or something complete-
ly different but similar in essence, and also criticized for political stereo-
typing: Croatian sociologist Dinko Tomašić (2013) distinguished between
a more peaceful cooperative culture in the lowlands and the more bellig-
erent one that formed in the hills, mountains, and barren hinterlands of
the Adriatic coast. That culture honored impulsivity and aggressiveness
as the means of survival of tribal conglomerates. The armed bandits acted
in concert through tribal assemblies structured by clans. The patriarchal
leadership decided on violence and punishment, or more often, the sub-
jects solved their disputes through the horizontal punishment in the form
of private vengeance.
 Criminology 433

The point of this discourse is exactly in the combination of some hu-

man traits, the will to adapt and survive, that give way to more or less
violence as a functional means of survival. Culture, then, is nothing pri-
mary but a response to something secondary, just as, to take an example
from the advanced life-forms in the animal kingdom, the populations of
killer whales feed differently and have different cultures (and languages,
yes) as observed by oceanologists. Margaret Mead’s disputed point about
different assignment of gender roles in different cultures (Mead 1963)—
males behaving as “typical females” and vice versa versus cultures that
correspond to male or female behavioral stereotype—could be but a con-
sequence of environment: of those Papuan tribes living near the lakes, in
the mountains, or whatever was the geographical, economical, and his-
torical contingency that induced the Mundugumor to be brutish and the
Arapesh to be gentle and peaceful (if they were indeed such as they were
described). The point is that the normative level of Mead’s discourse is
possible where the development of technology, economy, and society
allows for pluralism beyond fundamentalisms of the fixed gender roles
associated with the political economy of a mammoth hunt. To return to
the present and to our area of probing: desistence is something to think
about when we think about crime, violence, and punishment in aging
societies, especially when this is combined with an influx of population
of the “Others” where the age cleavage may parallel the cleavages of
ethnicity, language, religion, and race (and often the distribution of sex,
since males seem to embark more easily on long journeys to the “un-
known”). In addition to any sociology and cultural theory, these stories
of human life cycles having to do with hormones and visceral things thus
point to another discipline still deeper in the rabbit hole. The develop-
ment of the species and of individuals and the violent propensities of
some, normatively encouraged or prohibited by the cultural systems,
open up space for the biology of crime, shouting nature against nurture
in an old simplicistic rhyme.
It may be an uneasy terrain to discuss for some. There are fabrications
infused with ideology circulating around, and pseudo-science labels stick
easily to the authors who often have well-argued reasons. Accusations of
racism or sexism do not lack. The ontology here is the one of the species
and its programmed behavior, cells and instincts before the social
contract. And history is often loaded with the morals of killers and rap-
ists surviving and transferring their genes—which many, if not all of us,
carry. The metaphor is the one of the bad seed, to which I will devote two
stories before settling down in some calmer waters. In the discourse of
popular science, a book written by evolutionary biologist Robin Baker
(2006) uses the metaphor of war to structure the field of analysis: fictive
anecdotes are explained within a scientific type of discourse, putting for-
ward hypotheses, citing numbers and experiments. The underpinning
point is that we are not so different from animals and some of them are
434 Chapter 7

not so different from us. We carry genes of our violent and sexually
imposing ancestors and engage war on other collectives in a quest for
domination, resources, and survival just as the primates do or—further
down the evolutionary ladder—even “social” bugs such as termites and
ants that engage in war with other colonies (and these honorable micro-
societies tend to engage in an interspecies war, usually the latter raiding
the former, up to killing the queen and pillaging the colony).
Lots of aggressive behavior associated with sexual reproduction finds
its place within this discourse: men fighting other men for women, wom-
en fighting with each other over men or inducing the fight of other men
to see who is stronger, testing men with their resistance, even less likely
to report successful date rapes of their evolutionary conquerors. Even
homosexuality through bisexuality is explained as a reproductive strate-
gy for some. On the level of cells, the discourse also tries to explain a lot:
from orgasm helping conception to multiple relations with various part-
ners, swinging, or cheating, to induce the postulated sperm wars that
give the title to the popular book. I cannot really asses these claims since I
am not an evolutionary biologist but their point here is to illustrate the
type of discourse and to point out that lots of actions that are socially
prohibited and penalized are found in this discourse. For example, the
book offers an explanation of sexual crime as a part of instinct against the
prohibitions of culture, marriages, rape shields, and so on. And the prob-
able response of this discourse undoubtedly offering implicit legitimizing
aside from all reservations and lip service to political correctness—that is,
if it is instinctive and biological, how can it be moralized and penalized,
both adultery, homosexuality, and sexual violence aiming for reproduc-
tion?—could be, I imagine, Nietzschean and perhaps even Humean in a
sense: to say that—whatever the biology is and however may it func-
tion—ethics, politics, law, and norms are independent of it, cannot itself
be exempted from evolutionary strategies. To norm these interactions
one or the other way around is to take part in this struggle. Critique or
acceptance depends on which side one is, closer to the profile of the
victims or perpetrators. 7
The other example is even more problematic. It is the famous Henry
Goddard study from the beginning of the twentieth century about the
Kallikak family, playing with the bad seed metaphor as the cause of
crime in general. The story is well known. On return from the American
Civil War, a night of extramarital sex by an otherwise virtuous and re-
spected member of a community is realized. This banal event starts the
moralistic-eugenical saga. From the marriage of Martin Kallikak with his
lawful and pious Quaker wife, there is whole series of respectable succes-
sors, but the offspring in the line descending from the feeble-minded
barmaid offers a genealogy of criminals and—allow me to follow the
author and stay in this not-so-gentle discourse—“retards” or “morons,”
to use the term introduced by Goddard, himself a pioneer of intelligence
 Criminology 435

testing in the United States and an ardent eugenicist in the times when
eugenics could still be associated with some sort of guided democracy
(Goddard 2013, 237) and was generally not inappropriate. To be a moron
was a bit better than to be an “imbecile” or an “idiot,” when these labels
were understood as technical terms of that time instead of general inter-
changeable swear words of abuse. After the “Old Horror,” the proble-
matic son serving as the living witness to the extramarital sin of his
father—the often-quoted warning by zealous preachers, after all, is that
God punishes sin in generations to come—there is a series of delinquents,
the retarded, insane, criminal, and so on. As in Foucault’s great interment
of the classical age, these distinctions were not so important for the gener-
al character of the exclusionary operation.
The terminology has in the meantime changed; “Mongoloids”—a
term today often considered offensive on various levels—have become
persons with the Down syndrome. Many flaws have been found in the
study that was renounced, even by its author. The pictures of the white-
trash porch subjects were photoshopped to look evil. Alcohol and nur-
ture can be included to supplement the story. However, its essence, Lom-
brosian thought combined with hereditary genetics, remained as a bad
seed metaphor still available at discursive menu for biologically minded
criminologists to seek causes of behavior that is termed criminal. In the
modern version, calling for interdisciplinarity, the metaphor of seed is
expanded into the one of growing plant: “A more apt analogy for the
origins of crime may be bad seed in bad soil with inadequate rain and
sunshine. Such conditions may be optimal for weeds” (Zuckerman 2007).
To be sure, this development still has a few unsettling policy implications
because weeds are usually weeded out to protect the plants one wants to
grow, but one may perhaps think of viniculture as a more complex meta-
phor. It is in any case to play against the ontology of a blank slate, as an
older Pinker piece had it (Pinker 2002), arguing against some dogmas of
leftist academia and the stereotypes provided by the (straw men) philoso-
phers of old, such as Cartesian rationalistic cogito, Rousseau’s noble sav-
age, and Locke’s tabula rasa of empiricism. Against wishful thinking and
philosophical constructs, genes and evolution make people different, and
there are some quite incorrigible individuals. This discourse then merges
with the social in the form of sociobiology of crime that puts genes and
hormones such as testosterone in the social context of norms and roles
and canalizes the biological material in the realm of biopolitics.
The idea of an interdisciplinary criminological discourse is that all
these discourses have to be taken into account since they deal with vari-
ous layers of reality, from more stubborn longue durée structures of nature
and ways of the “Darwin machines,” their biology and psychology, to the
various paradigms dealing with the political and the social. Needless to
say, interdisciplinarity is a tool, usable for various goals, interests, and
ideologies so criminologies—whether of inherited genes or social roles—
436 Chapter 7

make Humean skips to the normative realms and back. As argued else-
where within these pages, including the final chapter, Nazi interdiscipli-
narity was one of the organic sciences of the Volkgemeinschaft, a people’s
community with different goals and ideological disposition than the
interdisciplinary efforts of contemporary liberal democracies of the West.
Politics, whether more subtle or blatant, as we see in the final section of
this chapter, provides discursive do’s and don’ts, career opportunities,
money, and influence. The “evil” Nazi PhDs, studied by a contemporary
French PhD, as we shall see, were ordinary men following career paths
from academia to the SS, from subtle or blatant killer words to the literal
killing machine of thanatopolitics serving racist biopolitics. But before the
last section of this chapter, putting criminology into the political context,
I want to point to some causes that defy easy classifications within disci-
plinary confines and serve as examples to this illustrative developed
interdisciplinarity and then point to the discourse that doesn’t fit in any
of the boxes of social and natural sciences, and only then wrap it all up to
dismantle it in an exercise of ideology critique.
The devil drinks from the bottle in the video of Tinie Tempah and
speaks about his delicate relationship with Joan of Arc, but the usual
metaphor is that the devil resides in the bottle. Indeed, there is some truth
to it when violence and crime are at stake instead of the saint. Theoreti-
cally limited but extremely firm finger pointing to it is a classical place
both of statistics and common sense: “up to 82% of violent offenders had
consumed alcohol prior to committing an offence” (Collins and Mes-
serschmidt 1993, cited in Watt, Shepard, and Newcombe 2008, 2). Alcohol
is a well-known criminogenic factor, a facilitator and catalyst, firmly cor-
related not only to various early hours irrational brawls when inhibitions
are by the excesses of liquor reduced, together with rationality, but to
domestic violence, hooliganism, various sorts of street crimes, lethal traf-
fic accidents, sexual crimes, and so on. The causal mechanisms are more
or less clear but the problem of policy design to prevent it is interdiscipli-
nary. The thing is chemical and biological, for sure, and medicine and
psychiatry have a say too, but it is furthermore social, political, economic,
psychological, and cultural.
Concerning the latter, in a concert, James Hetfield of Metallica an-
nounced the classic Whiskey in the Jar as an Irish drinking song, making a
joke that more or less all Irish songs are drinking songs but his point is
easily made universal. People like to drink and most cultures accept it.
And sometimes they are violent and damaging to others when they get
drunk. It is a concrete problem for criminology that mobilizes all the
discourses described earlier to get a clearer picture of the phenomenon:
gang rituals, sorrow of the deprived classes, and diminished rationality
of the individual all appear from the bottle. And a similar discourse
appears from the barrel of a gun, since some people like to shoot, and
American kids engage in spree killing here and now, to remind us how
 Criminology 437

constitutional amendments from the era of the struggle of freedom and

Redcoats, the right to bear arms, and assemble militias, while handy in
the fictional scenarios of the Cuban–Soviet invasion such as in Milius’s
Red Dawn (which, political software aside, in many aspects strangely re-
sembles Yugoslav partisan spectacles à la Hajrudin Krvavac), have an
adverse effect on public health: “The mugging, the bad drug deal, the
schoolyard fight—all are more likely to turn deadly due to the easy avail-
ability of firearms in the United States” (Kramer 2000, 134).
While these two factors call for interdisciplinary treatment in building
a discourse to affirm or change the existing Rousseauist political will that
historically fluctuates from prohibitions to abolitions, some of the inter-
esting empirical factors tackled by criminology and having to do with
chemistry and technology are not so obvious. Moreover they may seem
like a joke from the perspective of social science. One of these zany theo-
ries is the attribution of crime reduction to the reduced emissions of lead
that is held to be quite poisonous in certain amounts, and inducing ag-
gressiveness and impulsive behavior similarly to alcohol, at least in some
people “(Farrell, Tilley, Tseloni, and Mailley 2010). Nothing is impossible
on the crime scene for a good detective and for a criminologist; looking
upon the aggregate situation, society as a whole is a complex crime scene.
This makes virtually all the elaborated discourses worth probing. Ag-
gressiveness, for example, may appear in larger amounts in some specific
weather conditions, humans being part of nature. The incidence of vio-
lent assaults rises with humidity and low pressure as witnessed by the
density of newspapers crime sections and violent crime statistics correlat-
ed with seasons and microclimate changes. The rhythms of crime follow
the rhythms of nature, as in Montesquieu, climate being put before cul-
ture and religion. Maybe it is a myth, as Bourdieu had it, especially when
used for fishy generalizations about nations, but, then again—lead? Isn’t
that too bizarre?
The basic hypothesis is that relatively high consumption of leaded gas
in the 1960s and 1970s affected children growing up in the 1980s. Due to
lead exposure, children might develop a “lowered intellectual ability
among this age group, resulting in poor decision making during teenage
and young adult years that would eventually translate to an elevated risk
of criminal involvement” and then, in the next step, correlations are
found between gas consumption and crime, and as the further factors are
controlled, the subsequent research finds out that “altogether the individ-
ual- and ecological-level studies suggest an association between structu-
ral disadvantage, lead exposure, aggression, and crime/delinquency”
(Narag, Pizarro, and Gibbs 2009, 960, 962). The point of the quoted re-
view is exactly in the ecumenical cooperation: “the integration of the lead
and criminological literatures suggests that the cognitive deficits and ex-
ternalizing behaviors associated with lead exposure may spark a spiral of
negative social consequences that are conducive to criminality” (Narag et
438 Chapter 7

al. 2009, 964). And as the lead and crime are happily wed, a strong policy
prescription emerges associating two areas that were seldom thought
together. Energy and environment protection policy together appear
closely knit with criminal justice: “Lead exposure prevention and lead
reduction programs also need to be evaluated for crime reduction capac-
ity. Lead reduction and regulatory programs have great potential for
addressing the crime problem for several reasons. Lead exposure may
spark a spiral of negative social consequences, meaning that intervention
with lead-exposed children can prevent the more proximal criminogenic
experiences” (Narag et al. 2009, 968).
The story is one of public health, and as criminologies with epithets
emerge, this case of leaded gasoline vapors and crime gives the old syn-
tagm of environmental criminology a whole new meaning. I do not know
much about the story to evaluate it properly within the scope of this
probing, where it is used as an illustration of discursive possibilities in
the criminological field. For me, as a social scientist, it still causes almost
a knee-jerk reflex, as in the story of a correlation between the number of
plane crashes and psychoanalytic treatments, which both rose but it does
not necessarily mean that psychoanalysis is in any way responsible for
plane crashes (that is if we exclude suicide pilots or bombers, having in
mind some recent cases, but then psychoanalysis obviously has quite a
broad application). Perhaps a parallel story might be told with the cate-
gories of disorganization and anomie, disadvantages and rational choice
where those exposed to lead arrive in this world in a setting that has
much more poisonous social lead described in the passages above. But
the point is to think widely: some if it might be true and it is relevant
when probing the extremes. It is, in the end, a kind of an X-Files attitude
without alien paranoia, relaxing a bit Scully’s notorious reluctant skepti-
cism: a general curiosity of science that in search for the explanation
should not rule out anything a priori, as experience of Doyle’s Sherlock
Holmes and other fictional detectives has in numerous occasions corrob-
orated.
Furthermore, one other factor might well be followed with the story
on other spaces. Criminology, although it is hard to believe, may also be
poetical, in an Aristotelian sense of creation and design. The Left and the
Right also pierce this space. Are there then leftist and rightist buildings,
socialist and liberal ones? Yes, but not in the sense that baroque and
neoclassicist styles might correlate with some specific ideologies. The
architectural design as well as urban planning may become a part of a
criminological arsenal and a political one, if we accept that form follows
function. Probably the best-known historical example of criminological
architecture is Bentham’s panopticon, which received enormous atten-
tion in Foucault studies and elsewhere, and keeps haunting the questions
of power, crime, visibility, and space even as new technologies appear. In
the eighteenth century Bentham designed an ideal correctional and sur-
 Criminology 439

veillance institution—so he thought—arranging surveilled bodies in cells

with outside windows around the central tower, which made incumbents
visible from both directions. From that design, as we have seen, Foucault
induced an ideal form, sort of perpetuum mobile of disciplinary power,
self-regulation of the subject induced by perfect visibility. The observed
might even not know if there is a guard in the panopticon, but the very
possibility that there is one makes him behave. Modern technologies such
as omnipresent cameras and Internet traces, mobile phones and GPS sat-
ellites, are no different in their essential ability to play an important role
in the field of surveillance and crime control. Deleuze’s observations on
the society of control were already mentioned. Panoptic metaphors were
studied and developed. Panopticon, for example, even managed to be-
came a “banopticon” in the migration studies (Bigo and Tsoukala 2008).
The theme is academically inexhaustible. Panopticism is a genre of its
own, which I haven’t even scratched here. In practice, to name two prom-
inent historical examples, it made it from Viennese Narrenturm to the
Presidio Modelo, a Cuban prison on what is today the Isla de la Juventud.
The important point for us is that architecture can serve for social control
by designing buildings, the same as the urban planning may influence
crime by taking care of visibility, for example by installing street lamps,
designing streets, or assigning functions to whole city areas.
Historically, there is the famous phalanstery envisaged by the socialist
utopians thinking of small, self-organized autarkic community as the
ideal of social life. Charles Fourier designed it with two wings—one for
the noisy labor and children, the other for meeting guests and for social
life—and the quiet middle in which one was to dine and study. It is the
ideal architecture for a group of good people, socialism of a small com-
munity wedded to architecture. We might place this idea on the Left and
remember Dostoyevsky, who did not see human nature fitting into it,
speaking through the mouth of Razumikhin in Crime and Punishment.
More skeptical is the idea of defensible space, developed by architect
Oscar Newman, who theorized on space design. The idea takes into ac-
count outsiders and potential troublemakers, positing that human beings
are dangerous and that community warrants protection through various
intelligent means to prevent noxious misdeeds. The idea of crime preven-
tion through environmental design aims at the maximization of natural
surveillance on a territory. Architects and planners can help crime pre-
vention through living-space design by “utilizing mechanical means of
target hardening, and corrective means of mobilizing natural social pro-
cesses of territoriality and surveillance” (Gilling 2002, 50). In abstract the
idea is the following: “Defensible space is not a concept that is easily
transferred to real-world situations. It is about the psycho-emotional re-
assignment of physical areas, responsibility for such spaces and the de-
marcation and acceptance of new spheres of influence and management.
It operates by subdividing large areas of public spaces and assigning
440 Chapter 7

them to collections of individuals and small user groups to use and con-
trol as their own areas” (Rogers 2007, 196).
This is poetry, not in the sense of writing verses but in the sense of
Aristotelian creation and craftsmanship where aesthetics is merged with
functionality and creation put into the function of crime control. If pha-
lanstery is a fixed, archaic living factory, optimal for a peaceful anarchic
society, the defensible space metaphor subtly points to a small war be-
tween the community and potential attackers. It is the discourse of the
Right, perhaps liberal in the sense of governmentality of the subjects,
architecture guiding their conduct to defend themselves by using the
space responsibly instead of pure repression by sanctions that convey
retributive justice and that does the prevention through scaring. It is
costly destruction coming too late, instead of intelligent design of space
that reduces the chances for misdeeds before they even happen. Architec-
ture replaces or supplements societal security and penal policy, following
Le Corbusier’s idea epitomizing modernist architecture, that buildings
are machines to inhabit or simply to live in (machine à habiter or machine à
vivre). And, in our context, they are also machines to combat crime.
This leads me to the final point in this section exploring the other
discourses, disciplines, and problematic foci through an anecdote about
violence to be abstracted, which took place on the playing field as a
combination of structure, situation, and action. The discourse is based on
a real incident between two Croatian soccer clubs playing a high-tension
game in October 2015. The quality of the game is not important, but the
ambience and the actions of the referee were commented on by another
referee during a TV show, scrutinizing his decisions but also in solidarity
with him, being a fellow sports referee, knowing that being on the play-
ing field and in the midst of action is not like judging from the comfort-
able distance of the screen and couch without any practical consequences.
Rival hooligans in the stadium are in a destructive mood, the seats are
ransacked, and thrown into the field. The chief referee accepts the line-
man’s erroneous judgment annulling the regular goal (TV footage shows
clear evidence of mistake). The player of one team is supposed to throw
the ball into the playing field after an out was awarded, but he is pushed
by another player. Chaos ensues, and having in mind the atmosphere, the
referee doesn’t expel the brawling players but only the assistant coach of
one team. He is a practical utilitarian, reflecting on the spot; he does not
apply the rules consistently in order not to induce graver consequences.
Mateo Beusan, the TV referee, in scrutinizing his colleague. Beusan goes
by the name of the eagle eye or hawk eye literally (oko sokolovo), if a
reference to Oeil de Faucon excellent marksman from J. F. Cooper’s novel
is needed for the former, or the drunkard army surgeon from M*A*S*H
for the latter. Beusan—let’s call him Hawkeye from now on—speaks of
potential chaos, wounded or perhaps even dead in the given circum-
stances that might have led to fatalities. In his opinion, the referee
 Criminology 441

brought the game to an end, which was most important. He paused the
game twice but did not abort it as irregular (which it was); he made
mistakes but avoided bigger harm, which could have marked him and
others for life. According to Hawkeye, he is not to be judged harshly
having in mind the circumstances. Hawkeye blames the organization and
the clubs playing on a small field, claiming that prevention prior to the
game would have controlled the factors that influenced the game. Penal-
ties, in the respective realms of misdemeanors and felonies, will be ad-
ministered on the basis of footage and photographs or adjudicated in the
due process of law. In their specific style of truth with an epithet (brutal,
naked, total, real, and so on), the papers call the referee’s frank comment
“the biggest truth” (Orlić 2014). To round up the croquis, it should be
mentioned that Hawkeye, in one of his practical decisions made in the
role of the referee on the field, ordered the stand to be emptied. The
violence ensued: hooligans were beaten by the police after throwing
rocks. In other words, Hawkeye’s experience has shown to him there are
worse things in life than the continuation of an irregular sports match.
To come to the wider point for criminology and its relation to penal
policy, let us think of a crime in a society through the metaphor of a
game. It is the present soccer game we just watched, of aggressive players
with potentially and really violent spectators deployed to a small sta-
dium with meager security and with a judge who is both fallible and
prudent, knowing that rules are best enforced fairly but also that their
blind application may lead to chaos. Kant, the uncompromising philoso-
pher, was no referee in a boiling environment. The judge is the penal
policy that does not control structure and hardly controls the situation
that develops within the dynamic of agency in that setting. It is, to trans-
late the metaphor, society, its structure, and its processes, perhaps being
shaped by other policies in advance. The policies of the judge happen in
real time, taking into account the things he can control. What is criminol-
ogy? It is, I think, the interdisciplinary knowledge helping the judge and
the organizers: knowledge of the stadium architecture, anthropology, so-
ciology, and psychology of spectators and groups, of players on the field
observed from the stands. It is the complex discourse that speaks of the
movement of the givens and enables policy making to try to control
chaos with some normative idea, a telos of the peaceful game brought to
an end (and not a Heysel stadium disaster to name probably the worst
historical nightmare haunting soccer functionaries involved in cases such
as the one above). It sounds nice, but the point of the following section,
however, is that operational knowledge is not given from the hawk’s-
eye-view of observing the observers that make the decisions, but that it is
often the reflection of the stadium. Furthermore, it may be the reflection
of the groups dominating, of players scoring goals, and of a referee who
is potentially corrupt or simply overwhelmed by the setting: the stadium,
the situation on the stands, and the playing field. To paraphrase Rusche
442 Chapter 7

and Kirchheimer on punishment, there is no criminology as such, only

concrete criminologies. Criminology is politics, as is punishment. That is
the point of the penultimate section.

SOME NECESSARY CONDITIONS FOR A BLEEDING HEART AND

THE SPECTER OF BIOLOGY

It seems that politics is for (the science of) crime what a treacherous
woman is for the blues: it can’t live with it, but it can’t live without it
either. Criminology, as are other sciences dealing with society, is at-
tacked, either as being naively liberal and fiddling as a society goes to a
hell of amorality and allpermissiveness, or as being both complacent
sneaky in legitimizing the ongoing injustice and violence, complicit in the
oppression of the weak and marginalized. Its paradigms are attacked
with nothing less than bombs in one era, to be accepted as perfectly
normal in another. It is at the same time criticized for being irrelevant, for
being not political enough; it is, the reader shall admit, quite logical that
you cannot be political and neutral at the same time. “People, hear me
people: do you know what it means to be left alone?” Elmore James’s
1960s blues song about willows weeping and moaning because a girl has
left and caused the singer’s heart to bleed offers not only a picture of a
sad science with its streams and paradigms now irrelevant but also one to
be seen as an attack on the supposed political impact of its disposition.
This may all sound very strange, but a few examples will suffice to make
this scientific blues—or blues (of a) science—a bit clearer. I then follow
the hint from the title and discuss the problem more generally.
Newt Gingrich is a relatively well-known politician, an eccentric fig-
ure who expressed his enthusiasm for dinosaurs and behavioral therapy,
and converted to Catholicism. He also famously associated the American
welfare system—still thin when at its fattest, when compared to Euro-
pean social states—with “moral decay” and crimes. His political state-
ments opting for tough on crime policies in line with a rational actor
approach are easily read as a critique of the sociology of crime, as de-
scribed earlier. To offer a certain explanation is political choice. Gingrich
refused the one offered by the sociology of crime. He shifted political
responsibility from society to moral and legal responsibility of individu-
als. Addressing his fellow citizens, Gingrich claimed Americans “have
had, since Lyndon Johnson created the Great Society, a 30-year experi-
ment in destroying America. For 30 years, we have liberated prisoners,
tolerated drug dealers, put up with violence, accepted brutality and done
it all in the name of some kind of bleeding-heart liberalism which always
had one more excuse, one more explanation, one more rationale” (Gin-
grich, quoted in Tollerson 1995).
 Criminology 443

With a tougher enforcement of rules, criminology becomes a part of a

new political-ideological complex working in society. It is easier to be
tough on crime, however, when rich and safe, far from the circumstances
that are not always far away from the ones Engels described, putting
pressure on morality and uptightness. On the other hand, for example,
we have a picture of criminology that is complicit with oppression since
it is silent on many varieties of state violence from Galtung’s broad
peace-building universe. Criminology becomes an ideology of order em-
anating slow violence, politically challenged in an eternal fight for cate-
gories, but often coming late as a mere folklore that keeps current injus-
tices out of sight. Hegel’s Owl is a bad revolutionary; so is academic
criminology. Its newly discovered silence is self-accusing in the face of its
political responsibility, but this drama usually comes too late. Revolution
is, by definition, outside of any establishment, and when it enters the
house it is hardly revolutionary any more. From lynchings and bombs to
police violence and the slow violence of bureaucracy ignoring, obstruct-
ing, and oppressing until the individual wears out and fades away, we
see things ignored in the research of the mainstream criminology: “There
is a long and mainly unresolved history of state actors and institutions
employing violence (e.g., physical and other abuse, structural violence of
deprivation, etc.) to establish and maintain relations of racial domination
and subordination” (Ward 2015, 300). Criminology’s responsibility is ex-
plicitly sought: “The scope and legacy of this historical violence are large-
ly unknown and generally ignored in US criminology, despite their prob-
able importance as historical social forces” (Ward 2015, 302). From the
one side, the heart bleeds too much; from the other, it doesn’t bleed
enough. Or to continue with this (inevitably) charged metaphor, it
doesn’t bleed visibly and in relevant places. Like social sciences in gener-
al, criminology as one of the specializations within sociology (Triplett
and Turner 2010) is often attacked for its ivory tower complacency: “An
isolated social science, in short, suffers from being essentially unaccount-
able to the requirements and standards of a larger public discourse, and
lacking that accountability it can, all too often, veer into the parochial and
self-absorbed, and, at worst, the barely intelligible” (Currie 2007, 185).
Criminology may perhaps speak the truth but in a convoluted way, a
truth no one wants to hear. It is, to reuse Foucault’s description of Men-
del as “a monster of truth” (un monstre vrai), speaking the truth but out-
side of the truth (Foucault 1975, 37). And to round up the promises of the
opening paragraph, it may speak the truth at odds with the political
truth. We may as well move to a nice anecdote from the Netherlands
illustrating this point. It was not long ago that biology was virtually a
proscribed topic in the social sciences, especially when it came to violent
crime. That the academic production is, in fact, a matter of politics may
be shown by a very concrete example related to “the specter of biology”
that also shows how the tides of discourse can play with academic desti-
444 Chapter 7

nies, sometimes with a moderately tragic epilogue for the protagonists.

Van Swaaningen in that sense writes about the famous “Buikhuisen af-
fair.” Professor Buikhuisen inherited the chair of criminology at the Uni-
versity of Leiden. In 1978, Buikhuisen “proposed a biosocial research
agenda, which caused a tremendous upset. Buikhuisen was portrayed as
a crypto-fascist and his inaugural address was disrupted by a smoke
bomb” (van Swaaningen 2006, 467–68). In academic research, no one
wanted to collaborate with him and he was forced into early retirement.
According to van Swaaningen, Dutch criminology was entirely of a soci-
ological provenance. The then-accepted dogma was that the causes of
crime are social, and biological criminology was discredited because of
the racism in science before and during the World War II. In such circum-
stances, “an epidemiologically skilled psychologist such as Buikhuisen
appeared very deviant indeed,” but the ideological climate has since be-
come completely different:
Today, a number of neurologists, psychiatrists, and clinical psycholo-
gists undertake bio-criminological research that, in the sphere of juve-
nile delinquency, goes much further than what Buikhuisen ever in-
tended, without causing any unrest. When in 2005 the Netherlands’
Journal of Criminology (vol. 47, no. 2) published a special issue on the
state of the art in bio-psychological and biosocial criminology, hardly
any journalists bothered to write about it (van Swaaningen 2006, 468).
The same is, to be sure, in political science, which is important for the
following points on the relationship of politics and social science. The
research that seeks to link genetic inheritance and political preferences
would not long ago be held racist, while today it is certainly less of a
taboo, possibly greeted with a timid note that genetics and politics are a
phenomenon of different order—biological and social—which puts any
found correlations at a theoretical impasse, since the same hardware may
go with different software. Or can it? Be that as it may, van Swaaningen
in his review of Dutch criminology further develops the linkages be-
tween politics and academic research. In the 1980s the rule was that
(even) “academic criminology . . . was mainly led by policy questions”; as
he recalls, one high-ranking official in the Ministry of Justice, and later a
professor of criminology at the University of Leiden, “even argued (van
Dijk 1985) that the status of criminological theories depends on their
usefulness for criminal justice policy and practice” (van Swaaningen
2006, 470). From the perspective taken here, that sort of political pragma-
tism seems almost natural.
Academic criminology in the Netherlands also was marked by the
typical research topics at certain times: in 1960, Dutch criminologists en-
gaged in the theme of rehabilitation; in the 1970s, stigmatization was
researched, seen as a result from exposure to the criminal justice appara-
tus. The 1980s brought engagement with petty crime and prevention,
 Criminology 445

while the 1990s brought in organized crime and ethnicity as factors in

crime. It is not necessary here to elaborate the ideological and political
shift that goes hand in hand with changes in thematic orientations; suffice
it to say that the concepts of rehabilitation and stigmatization, as we have
seen, have a firm political pedigree on the Left while situational preven-
tion in the style of the criminology of control and ethnicity (against color-
blind criminology) are attributed to the Right. Finally, van Swaaningen’s
emphasis on the strengthening of forensic science in the Netherlands,
which is independent in relation to traditional academic criminology be-
cause it is closer to the natural sciences and works directly as a helping
discipline to criminal justice, is worth noting. A practical, down-to-earth
tracing, a “CSI Netherlands,” instead of the more ambitious and foggy
causal stories in other spheres than physical evidence and psychological
profiling, appears as one further bit in the wider paradigm shift. And on
a more general level, it is not hard to predict the turf of societal processes
and battles appearing in the field of criminology infused with ideology
and politics of the times, in the Netherlands and elsewhere. The ques-
tions of immigration and crime already gave birth to such concepts as
“crimmigration” (see Stumpf 2006) pointing to the (new) typical clients of
the penal apparatus, which of course opens space for various normative
and ideological frames, reviving and refreshing the older criminological
discourses depicted earlier.
A political attack and a critique of silence, self-critique for irrelevancy
and a bomb (at least it was a smoke bomb) and a change of themes may
suggest a pragmatic response of science but also its political embedded-
ness. I try to show how criminology is not only an aberration in terms of
daily politics and struggles, drifting into something by chance or by inter-
est, but that the very possibility of criminology is political. Even if it can
offer a “neutral” explanation or a part of the story that is theoretically
sound and empirically precise, the very appearance of its object, as we
have seen, is political and historical. It is not neutral, and reaction to it is
not neutral. The science dealing with causes of violence, preceding rea-
sons for punishment, is political. It is the same point that was made in the
historical chapter drawing on the literature that tries to exit the simple
syllogism of penal policy as a reaction to crime, conceiving it instead as
an effect, a dependent variable of politics, economy, socio-psychology,
and so on.
The correlations are easy to find and functions are easily postulated, at
least when painting a very short, abstract, and sweeping picture that is
grossly unfair to the local dynamics, traditions, influence of particular
persons and interesting careers. That said, the sociological school appears
in a society that grows, demographically, economically, socially. It is
thriving, especially in the aftermath of the Second World War, where we
meet welfarism and the rehabilitative ideal, the strange creature that, as
Garland describes, was attacked both by beatniks and hippies in One Flew
446 Chapter 7

over the Cuckoo’s Nest style and by those closer to the Right, seeking
tougher punishment for crime. Rational choice then emerges as relevant
policy, together with the criminology of control as Big Society stumbled
and cracked to give way to Reaganomics and the political conservatism
of the 1980s that followed the 1970s oil crisis. Garland discusses this
dramatic shift, terming it the “penal turn,” and vividly describes the
whole world of criminology and penal discourse shifting in the United
States and the United Kingdom, which is in Garland’s narrative attrib-
uted to the social and cultural changes of the late modernity spawning a
“culture of control.”
But luckily for the claims made, the point here is deeper than that and
even does not necessarily lie in the detail (a place that I often cherish the
most): others have offered and will offer precise picture of big and small
dramas of these shifts in various countries following genealogies of crim-
inology and criminal justice. Instead of the fine-grained stories or details,
for once I offer a grand clash of discourses. Criminology, as we have seen,
starts from two historical facts: prison and statistics. Prison gives a sam-
ple of men to Lombroso. Statistics of the official organs of the state aim at
tracking and controlling the milieu and offer their data to social scientists,
who may well perform their own surveys following the big and official
one of, literally, “the science of the state” (statistics). Quételet’s average
man is the product of statistics in the sense not only of aggregate data
collection. The very rhythm of crime is established by the state, by its
political clout, policy work, and other apparatuses regulating social life.
The irony found in the fact that one might critique or change these prac-
tices—which gave birth to the very possibility of critique and later dis-
courses about change, real or illusory—doesn’t change the wider picture
of things significantly. Lombroso was indeed calling prisons “schools for
crime of the most damaging type” and argued for other types of punish-
ment: “Tissot finds whipping beneficial because it is inexpensive and can
be finely calibrated” (Lombroso 2006, 141), he wrote, as later some of our
acquaintances argued for Benthamite electric shocks to no avail even if
“[i]t is difficult to vary the intensity and duration of prison in a clear cut
way as it is with electric shock” (Newman 1995, chap. 5). The prison
remained and criminology kept rambling about it. There is something
wider and deeper lurking here that interests me, implicating social sci-
ences more generally. Let us take a look at it from two complementary
perspectives.
Habermas’s statement that social sciences hide their normative pro-
phylactics, referring to Siegfried Landshut’s 1929 Kritik der Soziologie (The
Critique of Sociology), is telling. Society is different from the state, though
it is made by that state, and could be shown as a totality of inequality and
oppression only after it has been established as such politically (Haber-
mas 1998). These are, of course, Hegelian terms of the political theory of
the state that gave birth to Marxian critique, seeking to overthrow social
 Criminology 447

injustices. And we have seen that there is such thing as Marxist criminol-
ogy. Habermas’s point may read as obscure at first, but it makes perfect
sense. There is a minimal Hobbesian consensus that precedes social sci-
ence as an activity of social beings in a given society. Criminology as one
of these “sciences of man” certainly is social in this sense, as its objects are
social: crime and criminals. A state that claims a monopoly—let’s forget
Locke and call it the liberal state—sets the stage for the object and the
analysis. There is a sovereign before criminology. Social causes of crime
and the social probing of biological causes, socially interpreted and used
like all the others, happens on the stage of the state pretending to a
monopoly of violence, in a state where crime appears as an aberration to
be controlled.
Within these frames, criminology as one of the discursive tools of
political penal policy appears; the same concept of human dignity and
rights in the societal space established by the state in turn seeks to legiti-
mize itself in face of this society. Drawing on the literature about legiti-
macy—including its legal, moral, and sociopolitical faces (Beetham
1991)—and justice, its thin universality of floating signifiers and its thick
cultural, historical, and life-world application (Walzer 1994), Snacken
writes a sentence that is only possible in the frame opened by the sug-
gested political development: “The thin morality of justice is turned into
policies through thick moralities that are the object of struggles and com-
peting narratives” (Snacken 2015, 414). My point is that criminology is
the object of these narratives enabled by a political framework negotiated
and enforced in a society of normative and practical beings living a social
life under implicit or explicit constitutional rules.
As in a pincer movement from historical battles, this point is reached
with the help from Foucault advancing from the other direction, Haber-
mas’s uneasy companion in theorizing about modernity, perhaps more
prone to the solution Habermas had discarded in the 1990s, that of the
aesthetic retreat to the self, leaving political theory to the fantasts and
setting oneself to write down a Hellenist diary. In Foucault’s early take
from the 1960s, human sciences in general appear as something epistemi-
cally fragile that will, in some foreseeably unforeseeable event, disappear
together with its object. It is the famous visage de sable metaphor ending
The Order of Things, stating that you could bet with good chances that
“man will be erased as a face in the sand drawn near the seashore”
(Foucault 1966, 398). Criminology as a science of human criminality will
then disappear as well.
Foucault’s second take, dating from the 1970s, is more political. The
ambition of Discipline and Punish, as we show in more detail in the fourth
chapter, is to write down a history of the body of the condemned correla-
tive to the history of the body of the sovereign, offer a Nietzschean gene-
alogy that shows the replacement of violent saturnalia in a sovereign’s
shadow with a closed society of the disciplined subjects, all of this paired
448 Chapter 7

with ideas about the history of social sciences on the margins of this
process. In an exaggerated bit still onto something important, Foucault
writes how not only criminal but modern human itself is born out of the
birth of the prison. New practices of punishment, their discourses and
ontologies, become a litmus test of our own humanity: “The day will
come, in the 19th century, when that ‘man,’ discovered in the criminal,
will become the target of penal intervention, the object which it pretends
to correct and transform, the domain of the whole series of strange sci-
ences and practices—‘penitentiary,’ ‘criminological’” (Foucault 1975, 88).
More mundanely, it is the place of criminology in political history that
makes Lombroso possible.
First, prison is invented, not as a dungeon but as a system of correc-
tion. It appropriates disciplinary technologies from the disciplinary soci-
ety in Foucault’s narrative Second, other discourses develop coming in
and out of prison, perfecting it, developing it, maybe one day discarding
it. The penal system is the consequence of societal change, of a discipli-
nary system that is appropriated and perfected in prison. Not mere dun-
geons but facilities with rehabilitative ambitions, the prisons provided
the opportunity for Lombroso to measure the heads of the criminals, to
study their tattoos, and to criticize the penological inefficiency of impris-
onment. Criminology is thus preceded by penal policy and politics, as in
Foucault’s discourse, where the modern human being is preceded by
systems of power, giving birth to man who will, following Foucault’s
epistemic argument from the 1960s, be erased when power relations shift
together with discourses and technologies of the era. But since the con-
crete forms will be decided by the future itself and can now be conjec-
tured only on the basis of futurological striving (that would probably end
up as blind, useless, and wrong), the only option from this impasse of
speculative divination is to forge a reasonably sober conclusion before
the last chapter.

CONCLUSION: UNDERSTANDING FEUERBACH AND THE BLACK

SQUARE

Habermas’s own grand social theory, a synthesis from the 1980s called
The Theory of Communicative Action (Habermas 1995a, 1995b), offers a sort
of combination of sociological communicology and sociological function-
alism. It also opens space for the unbalances that are possible in the tidy
functionalist heaven of the sociological modernity. Catastrophes may oc-
cur, or at least serious dysfunctions of particular systems, economic and
political, playing their systemic game against the idyllic lifeworld of the
individuals if they are not curbed by the democratic action of citizens and
the communicative work of civil society. This action represents a political
element of the discourse warranting the elaborations of Between Facts and
 Criminology 449

Norms (Habermas 1992), Habermas’s theory of law and deliberative poli-

tics built on the suggested sociological grounds because problems are not
beyond fixing and one is not limited to the said genre of diary in the style
of Hellenistic authors. It is not a Marxist narrative of a younger Frankfurt
scholar but a mature status quo synthesis that leaves things more or less
as they are, probably warranting penal policy of human dignity along the
lines of Snacken, where it would be judged on the basis of the ideal
speech situation of autonomy, a construct quite similar in spirit to the
theoretical devices of Rawls’s liberal egalitarianism. The point of one of
Habermas’s side remarks of historical character was to put criminological
theorizing as a discourse within wider political frames. Sciences dealing
with the social need the normative protection of the state. In that sense,
they are political.
Foucault was discussed (over)extensively in the chapter on power and
his views are well known. The place for the subject opens in his late
lectures and writings, perhaps opting for an ethics of moderation instead
of imposing binaries, or at least interpreting some historical ethical sys-
tems to be such. His chronologically earlier writings that dealt with mod-
ern power and human sciences provided a picture of discourses as reduc-
ing subjects to their functions or effects of power/knowledge constella-
tions, or at least making their autonomy quite thin. Discourses of crimi-
nology from that perspective appear as such a vehicle in struggles for
power, often local and tactical, putting a special strain on intellectuals
striving for efficient political action.
The usual table (see table 7.1) gives a review of the criminological
discourses loosely scrutinized in the elliptic historical review offered by
this chapter whose alternative title perhaps might have been “Criminolo-
gy and Penology,” the latter not of the enlightened rehabilitation of a
punished individual. It would be penology in the sense of the science of
penal or preventive response to crime associated with its causes as they
appear in the eyes of interdisciplinary criminology. But this would
broaden the story too much and would not add much to the point made
here; if wider causal narratives operate in the political field, an array of
the more narrow penological theories (see, for example, Tonry 2011),
aimed at building a rationale for punishment, theorizing correction or
punishment of the transgressing individual, are a fortiori political opera-
tions of societal discipline and political stability. Instead of reviewing
such a discursive menu, this conclusion instead offers some general re-
flections on the theory of crime and punishment.
What, then, to make of this motley inspection? First, it is easy to mock
some of the discourses. One was, for example, presented through carica-
tured versions, instead of some more nuanced, up-to-date, fine-grained
stories. Sociobiology following the line of thinking of evolutionary biolo-
gy might accommodate just about everything from partner choice to po-
litical preferences and crime, similarly to at least some forms of popular
450 Chapter 7

Theory Ontology Causality Politics

Lombrosian Born criminal Biological Eugenics, death,
criminology determinism and incapacitation
French criminal Societal Sociological Intervention in the
statistics development and determinism of the milieu of the
the environment rhythm of crime developmental
(economy, climate) policies
Sociology of crime Social structure and Anomie, culture, Social action
process learning, labeling, against stigma
strain breaking
Marxism Economical basis Ideological Revolution or social
superstructure democracy of
prevention
Rational choice Rational individual, Supply and demand Utilitarian
an economic taking elasticity into punishment working
subject account against crime
Bihevioral Pavlovian dog Behavioral Young age
psychology conditioning behavioral
programs for the
risky individuals
Anthropology Young and old Growing old Silver nursing
instead of
repression
Biology Bad seed Genetics Eugenics
Architecture Space as the Space as the Space as the
environment of opportunity for opportunity for
crime crime design
Habermas Communicative State as a Communicative
individual constitutional action of the civil
embedded in the guarantee and a society
lifeworld potential systemic
aberration
Foucault Epistemic and Functionalism, Specific hyperactive
power effect struggles, intellectual
genealogy

psychoanalysis, notorious for the explanation of too many things in a

facile manner. In other words, it may well be the murmuring of a particu-
lar culture confirming itself in its various forms like the two proverbial
guys owning a bar, pouring each other drinks and paying with the same
bill to find out they have run out of liquor but are still no richer. It is
similar with a sociological approach and its specific extremes, rational
choice and Marxism. Their stubborn ontologies can accommodate much
of the phenomenology of crime and offer a heuristics for almost any
 Criminology 451

possible situation. They might be self-fulfilling prophecies, depending on

the political climate and political moment in producing the consequences
they have projected. As we have seen, criminology also arrives at an
interpretation in the style of the theses on Feuerbach who long ago so
impressed young Marx, a dancer and a poet, later becoming a guru of the
social revolution. Philosophers of punishment have only interpreted the
world, but the point is to change it. This is not only a call for social
revolution or serious preventive efforts but a request that all these theo-
ries, if taken seriously, strive to act and to dialectical self-negation after
accomplishing their goals. If causes of crime are identified and erased,
crime disappears and the problem is solved. Voilà, Comte’s adage: to
know, to foresee, and to act. The program of criminology is to abolish
itself through its realization giving birth to a society without crime.
But there is a critique of this easiness of politics. Old Heidegger, ironi-
cally accessible through YouTube these days, picks up a book from the
shelf and reads slowly with a raucous capo-like voice in the old Marlon
Brando style from The Godfather: Die Philosophen haben die Welt nur vers-
chieden interpretiert; es kommt aber darauf an, sie zu verändern, goes the
Eleventh on Feuerbach in the original. And then the old philosopher
makes his point: Something is omitted, in his opinion, when this is
quoted as a ludic revolutionary call to arms. There is an epistemic back-
ing to this thing called politics. Or in his more conservative words, the
philosophical claim is left unspoken (unausgesprochen ist der Forderung
eine Philosophie vorausgesetzt) so it is easy to overlook that world changing
implies the changing of the picture of that world, or its understanding
(übersieht man das eine Weltveränderung vorauszetzt eine Veränderung der
Weltvorstellung). 8 Pace Popper, Marx arguably had an alternative vision
of the world, good or bad, that is not to be discussed here.
The important point here is that you have to have a theory behind any
rational attempt to change things or fix them as they are. That opens two
problems. One is that theories presented as the historical ones, or theories
of power, religious discourses, and fictional flights, are partial: partially
accurate, partially functional, and partially useful. Rusche and Kirch-
heimer knew that when they were writing about the history of punish-
ment: “The seductive character of every one-sided character of every one-
sided theory of punishment lies in the false hope that it makes possible a
clear and fruitful praxis” (Rusche and Kirchheimer 2003, 141–42). All of
these theories are probably not a good all-encompassing guide for prac-
tice. Swiss writer Max Frisch knew that and went one step further. Frisch
started the Black Square, his 1981 lectures at City College New York, with
an honest confession beyond his insecurity in English as a house of being
still strange to him. “I don’t have any theory,” he stated. He cited many
fascinating theories of aesthetics ranging from Aristotle to Barthes, specif-
ically mentioning Marxist thinkers such as Benjamin, Adorno, and
Lukács. But he still insisted on the abyss between theory and work. It is
452 Chapter 7

one thing that he knew for sure: Aeschylus and Sophocles did not learn
how to write plays from Aristotle (in any case Frisch doesn’t mention
they were both long dead before Aristotle came to town) and, on the
other hand, novels written according to the nouveau roman theory are,
according to Frisch, insignificant and boring (Frisch 2008). However,
while Malevich’s Cherniy kvadrat wanted to relieve art from the gravity of
things, criminology cannot afford a luxury to free itself from the gravity
of its normatively prescribed object demanding practical action. Unlike
Duchamp’s magic urinal transubstantialized by art to become a fountain,
due to its political rationality criminology cannot be freed to become a
free-floating piece of aesthetic (since, to follow the analogy, people have
to piss somewhere).
The claim that this is poetry and aesthetics and not science with prac-
tical consequences is on the right spot, but at closer inspection, it seems
that the same goes for punishment, eschewing theory in the sense of, let’s
say, physics. The epistemic menu presented is not very impressive. May-
be it doesn’t go much further from the hidden normativity and ideology
of a particular society. On the one hand, Foucault’s nasty historical re-
marks on criminological prattle are not out of order even today, again
with all due respect to the interesting development of the science of
crime. On the other, if it is not physics, it is not completely irrational or
useless either, given the circumstances (at least it is not a defunct urinal
discoursed into a fountain by a witty chessmaster). It is not a complete,
robust coherent theory but a combination of orientational points, some-
times useful for prudent policy makers.
This assessment leads us to Frisch’s second point: Does a theory guar-
antee a good punishment? This again begs a prior question. Is it a same
type of theory (punishment analogous to a poetic device), or it is an area
of cold rationality throwing overboard all individualistic creation? If
criminology is a different sort of effort, following Aristotle’s ancient dis-
tinction between theoretic, practical, and poetic knowledge, penal policy
as political activity may also belong to the second and third pillars. Penal
craft, as torture, is a human effort, but so are perhaps more modern
techniques of therapy and talk in a constrained setting. Even the cold
walls of a phalanstery or the cells of a panopticon are an art of architec-
ture, helping criminology as defensible space. A prudent control like the
one advocated by our hawkeye referee, an Aristotelianism of crime that
takes into account various partial theories and ideas, is perhaps the best
that is normatively offered by this probing for the rational policy makers
and agents of punishment on various levels from policy design to the
street-level bureaucracy of implementation. And good ideas might not be
workable while bad ones reign from a certain moralistic point of view.
For criminology it is often too much or too little politics, working for it or
against it.
 Criminology 453

Or, in other words, all of it might be true but a limited kind of truth,
with sense and function within a system of relations and judgments by
practical agents, having to do with alethurgy, the creation of “truth” in
practice, working in the historical and tactical field of politics. Criminolo-
gy’s ideal function is to serve rational penal policy at odds with the
irrationalities of bureaucracy and politics. It is extremely interesting and
extreme in a certain sense, a hellish field of penal policy making worth
probing, but our gull doesn’t want to fight for food but fly farther in the
end. The discursive menu on violence and punishment is much wider.
History gives depth and development, comparative politics the differ-
ence, power the logic, religion the perennial sense both for mystics and
manipulators. Fiction gives possibility or restates the reality with memor-
able appeal, going beyond the faceted truth of crime in a society dis-
cussed here through some discursive shifts of modern interdisciplinary
criminology. Or so they claim. But even if we accept those claims, there is
something missing. There is also an older attempt to redeem the world of
violence. It is the final flight of the gull: theodicy, an older problem that
concerned Augustine of Hippo. Devoid of religion, the question is sim-
ple: Why is the world bad in the first place? Why is there violence and
punishment?

ENDNOTES

1. I do not specifically focus on methods as such, in the narrow sense of more or

less canonized techniques of extracting data from the world. They vary along the
usual gamut in the social science, artificial, and natural experiments not excluded.
2. I have obviously dropped an immensely important chapter-worthy layer from
the probing: criminal law (or penal law in the terminology pursued here, starting from
pain and punishment) as public law of the state, and above where agreed or imposed,
rationalizing state punishment. The elephant hopefully does well on its own: the bull
lives in another room, perhaps in another book (Duff and Green 2011). It is not that the
law lacks the extreme aspect of it, or that not being a legal scholar would stop me from
doing it; as in the case of other grave omissions, the primary reason was as usual—
space.
3. For a more comprehensive overview, see Bartollas (2006). The overview, howev-
er, uses the more general label of “conflict theory,” bringing together ethnic warfare
and class warfare, Sellin in an uneasy in-table marriage with Quinney (pardon my
metaphors).
4. In an evolution of the metaphor of war in Marxist discourse, an overall eradica-
tion of crime was later replaced by particular eliminations of tolerated violences. It
was “Class war and after,” as Laclau’s late 1980 text in Marxism Today had it (Laclau
1987).
5. The audience laughs as Foucault reads Becker’s definition of crime as at risk of
being condemned to a punishment. See Foucault (2004, 253–65). The wider context of
the analysis of political discourses is that liberalism works as a rationalization of the
art of governing according to rational behavior (le comportement rationnel) of the gov-
erned, against Marxism, which operates on the level of “rationality of history,” and
politics is seen as the game between those different rationalities (Foucault 2004,
316–17).
454 Chapter 7

6. If there is a touch, it is often punishment, Prescott suggests: “We touch for

pleasure or for pain or we don’t touch at all” (Prescott 1975). I could offer a few
thousand words long excursus about violence and touching in Prescott’s specula-
tions—indeed I have done that in the initial version of the manuscript—but I’ll instead
content myself with an anecdote in line with the book’s Montaigne-like methodology
of personalized skepticism, here involving the duo to whom the book is dedicated. My
older daughter was for medical reasons separated from us upon birth and was in
consequence bottle-fed from early on. She enjoyed pacifiers. My younger daughter, on
the other hand, was breastfed and did not like pacifiers at all. However, she substi-
tuted pacifiers with pinching and massaging of my wife’s and my hands, probably as
alternative means to fall asleep and, more generally, gain confidence when needed.
While the prolonged evening and night sessions sometimes resembled torture—she
seemed to have enjoyed finding the weak spots and drilling just there—we indulged
her. Not to enter into any more details, I’ll finish with the condensed statement that
my own family experience of raising children, as well as insight into some others,
which is probably more reliable than the childhood memories and various mercurial
sources, makes Prescott’s text interesting but far from convincing.
7. For a bit more highbrow approach than Baker’s zoology, suitable for those
interested not only in bugs and semen but in classical literature as well, the recent
reference is Gotschall’s The Rape of Troy, an interdisciplinary piece bringing together
Homeric epics and evolutionary sociobiology or, in its author’s own words, the piece
is “best described as an evolutionary anthropology of conflict in Homeric society”
(Gotschall 2008, 3). Gotschall claims there was a lack of women in ancient Greece
(“Homer’s missing daughters” is the title of one chapter, marshalling this fragile con-
jecture), which propelled the violence of massive proportions described in the Iliad.
8. The quotes as transcribed from the documentary footage entitled Über Karl Marx
und die Weltveränderung (“On Karl Marx and Changing the World”) originally from
1969 (Canalul 2007b).
 EIGHT
Dismantling Sorrow

Ut esset, cur iuste poenas luerem?

Ubi ergo malum et unde et qua huc inrepsit? Quae radix eius et quod semen
eius?
—Augustine, Confessiones, VII 1
ius Dei nihil aliud est, quam ipsa Dei potentia
—Spinoza, Tractatus Politicus, chap. 2, §3 2
Are extremes bad?
For Aristotle, ethics revolved around being in the middle, not geomet-
rically but according to the particular traits of a person: courage, as an
appropriate ethical disposition, stood between rashness and cowardice,
temperance between licentiousness and insensibility, and so on, for each
of us according to our own characteristics (Aristotle 2004a, 285). Whether
Aristotelian or not in style, it is of less importance here; the metaphor of a
“golden” middle for this doctrine expounded in The Nicomachean Ethics,
dedicated to Aristotle’s own son, stuck, denoting the proper ethical way
between the noxious extremes related to the lack of self-control. It was
good not to be extreme, since the extremes bring harm: practical wisdom
and a tempered approach were the hardest things to reach and keep in
the maelstrom of life’s challenges, thus constituting an ethical ideal as
valuable as the glittery metal. Ethical self-work took care of the trouble-
some extremes, long before the advent of pharmaceutics that level the
extreme moods of a well described phenomenology of a bipolar disorder,
a “manic depression” swinging between the ups and downs of hyper-
creativity and depression as in the troubled life of Jaco Pastorius.
Extremes are thus bad but necessary to know the right way. However,
epistemologically, in terms of conceptual knowledge, they play analo-
gous roles, similar but a bit different. To know the extremes, to probe
them, is to know things. For Aristotle, the ethical search for the right way
455
456 Chapter 8

between the extremes had an epistemological parallel in the field of meta-

physics—a name stemming from a lucky occurrence of Aristotelian book-
keeping. My hope is that this introductory analogy is not too farfetched
since Aristotle, at least compared to Plato, was more of a skeptical empir-
icist and thus a perfect fit to open the closure of a treatise such as this;
truth about things in the world was something coming out of the ex-
tremes stretching the boundaries of one category roughly understood as
a nominalistic empirical container. As there was no virtue without the
lapses at both ends, there was no knowledge without the knowledge of
the extremes, the furthermost species of a genus, populating the whole
universe envisaged as a scale, against Platonist “poppycock” of static
ready-made forms (Aristotle 2004b, 1039b/221). 3 For Aristotle, perhaps
the hardest puzzle of metaphysics was framed by one of his aporetic
questions: “How is it possible to have science of infinity?” (Aristotle
2004b, 999a/67). The possible answer was that the chaos of innumerable
individual instances can be tamed since “the one is said in many ways”
and that the path to knowledge is defined through the extremes setting
the boundaries to the issues of interest (Aristotle 2004b, 1004a/83, 1055a/
297). One just needs to compare Plato’s Republic and Aristotle’s Politics to
understand this subtle but important difference between imaginative
stretches of an idealistic mind and the analytic sketches of an empirical
disposition that replaces an ideal polis with the probing in the genre of
primordial comparative politics. In the precise wording of a once popular
auto-da-fé, Aristotle, after all, “is the eternal motorcycle mechanic who
prefers the ‘many’” (Pirsig 1984, 331).
The combination of Aristotle and Montaigne as shorthand for moder-
ation and honest skeptical probing (with bits of folly and faith) is hope-
fully not eclectic. To know something was and still is to know the ex-
tremes: the categories, not the eternal forms, but practical references, are
sharpened and contoured precisely by seeing how wide they can go and
how much sense they have. What is the stretch of the phenomena that fit
them without distorting them out of any sense? What are the various
manifestations and permutations of violence and punishment? This book
tried to explore real and fictional discourses as empirical givens imagined
by others, talking about things that happened, that might have hap-
pened, and that might happen sometimes and somewhere, concerning
the roots of violence, the practices and purposes of punishment. We
should now briefly ask ourselves: How did they see things and present
them? And with what epistemic and political goals, in various fields such
as history, comparative politics and religion, criminology, and fiction?
After an initial summing up, this chapter brings the old problem of theo-
dicy back in through the discussion of several extreme cases. Sorrow is
the key word, Babel the problem, theodicy the genre, on which some
hopefully interesting things are said after the examples are digested and
 Dismantling Sorrow 457

several frameworks that revive the problem of evil examined before the
treatise is finally closed.
Ground zero was to calibrate the concepts. Violence was limited to the
physical, its roots were let loose, evil was kept as a name for bad things,
and punishment was broadened to the infliction of pain in open games in
a perpetual quest for legitimacy. Discourses talked about violence and
punishment, offering different perspectives, pictures, and values, and ul-
timately different ontologies concerning the subject, society, and politics,
building their parallel worlds of being yet inhabiting the same one, as in
the emotive lyrics of Knopfler’s Brothers in Arms. The first of the chapters
probing violence and punishment in a specific perspective dealt with
capital punishment. However abundant folklore of torture was and tor-
ture techniques still are, the stripped naked question was and still is: can
the state can kill you legitimately? Following states’ practices, the history
of political theory answered positively to this question, while nowadays
the answer is more often ambiguous or formally negative, at least con-
cerning formal procedures for the common crimes outside of the state of
exception. We have seen various problematizations and answers ranging
from melancholic revolutionism to cynical biopolitics, from decisionism
favoring political death to Marxism supplanting death of the individual
with political revolution, and assorted variants of contractarianism and
utilitarianism that are more ambivalent on the position, sometimes seeing
death as a logical consequence of a serious political contract or framing it
more as an instrumental means of politics for the common good. Some
aesthetic thought exercises were added, built around God’s command-
ments and broken execution machines and abolitionist argumentation
has also been shortly presented. An individual may affirm or strongly
object to this extreme, but the point of the chapter was that there is no
deus ex machina to solve the normative problem in the field of death and
legitimacy. For Plato, the idea of good shines on everything when the
distorted world of the cave has been abandoned, but in a pluralist setting
of various cultures, classes, interests, and life histories, these ideas still
shine very differently for various religious and secular fundamentalists,
and the value systems of social groups and individuals differ significant-
ly. Philosophers with strong convictions still see each other as blinded
troglodytes. The implicit skeptical conclusion was that we haven’t moved
much from Hume in the public sphere, where normative fallacy plaguing
ethics still stands with no derivation of “ought” from any “is” that can
pretend to achieve the status of a logical conclusion. Framed as the insti-
tution of an anthropological sacrificial goat, into which all sins are in-
scribed to symbolically buy off the sins of the community in a violent
ritual catharsis, or as fundamental enjeu of a political contract, or as an
instance of mythical violence bringing to light violent constitution of any
order, as a brutal lesson from political gods to any common Niobe that
dares to challenge them, the extreme of the politics of the death penalty
458 Chapter 8

still stands as an opening that could not have been closed in a treatise on
violence and punishment.
The second, third, and fourth chapters can, for the purposes of sum-
ming, be lumped together since the discourses examined were not pri-
marily normative but realistic and explanatory: they share a common
trait insofar as they observe facts and try to compare them, and offer an
explanation of violence and punishment in space and time. Historical
probing did not provide solace. Instead of a Whig history, the idea was to
convey a picture of punishment extremely varying in dependence of
things that change, but not necessarily in a unilateral direction of the
Enlightenment’s progress disrobing the world of violence and punish-
ment, cruel, unusual, or at all. Historical explanations of punishment
emerged as a short series of discourses that can be expanded, supple-
mented, and combined, even if they implicitly or explicitly criticize one
another or indulge in meta-narratives of evolution or historical dialectic
materialism. A move from picturesque choreography of punishment to
imprisonment is something that has an explanation, not necessarily in the
sphere of ideas or nominal teleologies, and is not part of the uniform
march of history but of a constellation of factors that may, as they change,
bring up the “anachronistic” methods to plain daylight or recycle them in
the new form of hidden sadisms, improvisations, or induced political
techniques, as the chapter on power tries to show. The role of that chapter
was to take one especially important concept and elaborate on a specific
framework that interpreted punishment in terms of power, as an illustra-
tion of how one might think about punishment as an effect or function in
the social field.
The chapter in between the history of punishment and the power to
punish dealt with the extremes present in contemporary geography, of-
ten strongly amalgamating short case narratives with history and social
science from the two surrounding chapters. The point was that there are
still stories of punishment as much as there are states (and beyond that),
which is best illustrated with another case. Even after bashful signs of a
reversal of American exceptionalism in punishment and sentencing
emerged (Green 2015; Tonry 2016), the United States is still in a monoto-
nous mantra described as the country with the highest prison population
both in relative and absolute terms. While the latter holds, still sustaining
the industry of explanations and advocacy concerning American mass
imprisonment, the former interestingly does not at the times of writing
this conclusion, owing to the fact that there are small political units that
easily blow up their prison populations with not-so-big absolute num-
bers that pump up the relative numbers drastically, such as the Sey-
chelles, a small island state in the Indian Ocean that is also a carceral
archipelago combining adventure of pirates and imprisonment, since an
United Nations–funded jail accommodates Somali pirates there, boosting
up figures of imprisonment. The point of small-island polities only am-
 Dismantling Sorrow 459

plifies the picture offered by the comparative chapter juxtaposing judicial

canings, de facto ghetto prisons, executions, and hidden penalities in
parapenal institutions. These differences in terms of punitive outcomes
were presented as combination of discourses, economies, ethnic, class,
and other divides, and the point of the following chapter was that much
of it can be caught under the term power, or that the power functions in
various comparative and historical contexts shaping punishment. Simi-
larly, the volatile numbers and qualitative peculiarities of punishment in
former colonies, the small administrative units in heterotopian settings
compared to the big chunks of territory, various protectorates of dubious
sovereignty, and so on, can be treated similarly. Dramatic statistics or
practices of punishment then emerge not as a miracle of extremely lenient
or extremely punitive nonplaces but as contextual particularities that are
influenced both by developments of longer duration and short-term ex-
ternal shocks, alongside the local rhythms of crime. Colonial history, the
status of a transit route, the idea of an island as jail as an expository for
the penal population from the land, a small dependent population, and
so on: this may all, in comparative politics of punishment, shape its qual-
ity and quantity creating not a small country for a big holiday, as one of
the historical tourist slogans had it for Croatia, but a small country with
big imprisonment.
Probing the extremes in these three chapters played on a card of mid-
dle-range theories, saying that particular context plays a crucial role in
determining patterns of violence and punishment, historically observing
them through time, and using comparative social science mostly in the
present, as far as a snapshot can be divorced from the commonsense of
path dependency, with some attempts at generalization that still keeps
the story more or less nominally clothed, for example, wedding forms of
power and modalities of punishment. This shift in discourse, from nor-
mative theory to social science explanation, was not decisive either, in an
attempt to find some truth about punishment beyond its many modest-
scale patterns and regularities, not dwelling far away from the thick case
ethnographies, aiming, in Geertz’s words, more for nuances in distinction
than for sweeps in generalization. From a Popperian point of view, in-
stead of a big white swan, it was a flock of smaller black swans, still
waiting for the story of the white swan. Or, more accurately, it was a
flock of swans of many colors, ready to swoop down or fly up and refute
any single-color theory. The outcome was a strange echo of the historical
insight that there is no punishment as such, beyond the few introductory
contours of a general definition.
The next three chapters presented the normative discourse of religion,
offering the ultimate truths on things, prophecies, and guidance, the ex-
plorative discourse of the possible in literary fiction, and the general
scientific discourse on crime as something intertwined with violence and
calling for punishment.
460 Chapter 8

In old religious and quasi-religious discourses, punishment takes a

prominent role; it has a necessary function, or simply is, be it the verses of
the Koran prescribing specific punishments of flogging and crucifixion or
verses of the Tao Te Ching that praise Taoist numbness, where return to
the womb or simple nonaction is preferred to the proliferation of punitive
measures achieving the desired goal of the ruler without punishment.
Interpellated by ontologies of ethical consciousness and free choice, in a
violent world where some higher sense is in principle achievable, hu-
mans are faced with different ideas on punishment offered by the great
religions: its avoidance in search for wider metaphysical or political har-
mony; its abandonment in view of reckonings to come that will leave
these world’s powers as insignificant; or its precise prescription where
religious discourse is at the same time a governing policy discourse for
the observant community. (Somewhat schematically, where Buddhism
offers withdrawal from suffering, Christianity offers sacrifice and Islam
submission, with the consequences for the discourse of punishment.) As
the chapter tried to show, eclectic sacred texts exhibited a combination of
many of said traits, while their implementation is yet another complex
story. The point, beside the presentation of interesting discourses of the
texts themselves, was not to forget that religion, as a force by itself, still
moves the world of people, violence, and punishment, and that it even
induces compassion and forgiveness, however meager in the world of
real politics these two appear. In the material of the chapter, one could
thus follow the thin line between the contrary verses of the Koran, Bud-
dhist stories with different morals, or the two Bible Testaments in Chris-
tianity, not only mirroring some kind of evolution from violence and
punishment to forgiveness but also symbolizing the two faces of human
beings when it comes to violence and punishment. The sacred texts em-
bodied inducements to be violent and punish as well as actions belonging
to the discussed “better angels” of compassion and forgiveness. Or, final-
ly, religious discourse often left things as they are in this world, more
often violent than not, running into battle as ever, since duties are of this
world and soul belongs to the next one, lifting itself to the higher planets
even when or exactly because fulfilling earthly violent duties, as electric
and all-inclusive blue-skinned Krishna explains to the perplexed Arjuna,
who doesn’t see the point in fatal carnage between fine men but in the
end comes out fighting.
Fiction, on the other hand, offered some insightful images and aes-
thetics of crime, violence, and punishment, in discursive permutations of
the issues here discussed. The chapter tried to show that fictional dis-
courses, as the others discussed in the book, can be situated somewhere
along the classical ideological spectrum defined by the French Revolu-
tion. Fiction’s beauty can be reduced to (for some, boring) zombie catego-
ries, the ones of Left and Right: one proposing egalitarianism and pro-
claiming openness for difference, blaming violence on oppressive politi-
 Dismantling Sorrow 461

cal and economic systems, and being inimical to punishment; the other
proposing politics following irreconcilable differences, affirming hierar-
chy and authority, blaming corruptness of human heart and the violence
of human nature for crime and suffering, making punishment necessary
morally, metaphysically, and politically. It was the probing into the
realms of possible, where ontologies of nature as evil were shown along-
side those that argued that human beings as violent agents are the prod-
ucts of various structures, in renditions ranging from archetypal to mud-
dy, with parallel worlds appearing alongside various discursive accents
and positions. Both Haneke and Houellebecq, Tennessee Williams and
Huxley, Dostoyevsky and Gorky, Bulgakov and Golding, offered ideas
on nature, society, violence, and punishment that probe the extremes.
Finally, criminology, the scientific discourse of crime provided a simi-
lar variety of radically opposing theories with differing political over-
tones. They tried to answer the questions of where crime comes from and
how it is best curbed or even eliminated. The chapter offered a selective
overview of various historical and contemporary criminological theories
and a speculation on the matter of the relationship of criminology and
politics rather than systematic overview or historical research, a next step
in the direction pointed, that would require further research and exposi-
tional space beyond the purposes of the combination of discourses of-
fered in this book, the criminological discourse as a science of crime being
only one of the many. Ever since Cain, there is no truth of crime and
violence for the simple reasons that conditions change, that the definition
of crimes, and even humans and humanity, may change across political
contexts, and criminology seems to be a part of this game itself. Knowl-
edge of it is, as the argument ran, under political clout, protected by the
prophylactics of a political system that builds civil peace and defines
crimes, having criminology as one of its discourses helping its stability to
an extent, producing knowledge and techniques that are highly content-
specific at the cost of their universality. A welfare state and leftist crimi-
nology, neoliberalism and risk management, social transfers versus be-
havioral therapies: all of these, as effective discourses on crime, belong to
political eras, themselves a part of bigger one that substituted scaffold
and corporal punishment for prisons and probation. Nothing works—but
prisons and probation might at least bring money since incapacitation
pays for some, even if it is not in the interest of a political whole. Sub
specie aeternitatis, nothing is fixed in this game that gets quicker and can
arguably descend to hell again when the necessary conditions are met.
James Q. Wilson’s nature of man is a story of political man, a social
animal, inextricable from the polis, just as our friend Aristotle had it long
ago. 4
The dramaturgy of exposition forwarded as an epistemological strate-
gy of revealing various dead ends in face of the extremes has led us into
462 Chapter 8

Type of Form of statement Example

Discourse
Political theory Prescription or abolition of death/ Schmittian decisionism or
punishment Beccarian contractarianism
History Explanation of change Rusche and Kirchheimer’s
hypothesis or Durkheim’s
“laws”
Comparative Explanation of difference Difference in imprisonment
politics rates and forms of punishment
Social science Explanation of abstract relation of Foucault’s analytics of power
cause or function between or Deleuze’s hypothesis on
concepts control
Religion Prescription in this world or Buddhist scriptures
absconding, on the basis of a The Bible
higher/deeper insight The Koran
Fiction Imagination as a basis of Dostoyevsky’s Crime and
prescription Punishment or
Huxley’s Island
Criminology Explanation of factors under Sociological theories of gangs
(science of political auspices or biological theories of
crime) heredity
“Theology” Theodicy: making sense of evil in Redemption, irony or
the world rationalization

an impasse. It is a mess: a hardly manageable contingence, with some

middle range tidying up within a rough cause-and-effect scheme, prob-
ably some limited normative guidance for those who have modest goals
in concrete settings, and no firm ground for any kind of ultimate norma-
tive preaching. Based on the discussion thus far, we don’t know for sure
where we are going or even where we want to go with violence and
punishment. Pacifism of “violence is bad” or “violence is evil,” seeing
violence as a strange ghost of widely conceived Dark Ages, dispelled
through Enlightenment and development, is too facile a solution, easier
said than done. The opposite, “punish them all” to stop the decadence,
also doesn’t sound too reasonable or reassuring; if this laxness is a symp-
tom of the decadence of the author, he readily admits it. This concluding
chapter tries to push things a bit further: if it stops here, it will inconclu-
sively sit in puzzlement. If it continues, it may fall into a more dangerous
abyss—but skeptical probing of the extremes hardly has a better choice
than to try to find another extreme that trumps all those probed before. It
dares to enter into the suspicious realm of a discourse of theodicy, an old
tradition intimately associated with violence and punishment, appearing
when evil is accepted as a problem, seeking a solution in mundane policy
making or finding its place in the structure of the world as a systemic
whole. Wouldn’t one more discourse added to the reached impasse (see
 Dismantling Sorrow 463

table 8.1) only magnify the confusion? It is a bizarre problem, a fictitious

problem, as were some problems of philosophy for Wittgenstein, writing
more into our language than there is in it, a problem appearing in the
field of theology that hardly has more legitimacy than astrology in the
eyes of official science (and on-stage drunken Sagittarius Jim Morrison),
but nonetheless interesting and valuable, as I hope to show. Is there evil
or not? And why? What do we get by dispelling it? The search for the
soothing answers to these interesting questions lies in the final step
ahead.
Its structure is again inductive, building from the particular to the
general. I offer no fewer than forty gruesome stories of violence—a bit
more if some compound cases are broken down, and various interpola-
tions and illustrative remarks are counted—most of them extreme by its
pointlessness or by its cruelty. I then continue the introductory medita-
tions on the problem of evil to provide possible frameworks for the inter-
pretation of the cases and naturally continue to the titular theme of sor-
row as a figure of theodicy. Its purpose is to try to provide an answer to
the question if there is any higher sense in everything we have thus far
said about violence and punishment through the lens of political theory,
history, comparative politics, social science, religion, fiction, and crimi-
nology. It is an attempt to transcend the mundane chaos (or order) of the
given and the possible, which is by its nature less scientific and more
speculative and philosophical, even if from safe distance it reviews argu-
ments, discourses, and the anecdotes of others. I take that risk as a social
scientist since the discourse of explanation and fuzzy discourse analysis
from the preceding chapters would leave the story on violence and pun-
ishment somehow lacking. The discourse that follows is less constrained.
Come, let us once again build from the bottom up, through partial inter-
pretations up to attempts to find sense, irony, or anger in the bigger
picture of Babel after the attempts to dismantle sorrow are made and our
emotions have changed.
Will our tower then stand or crumble?

ARPEGGIOS FROM HELL AND A HIMMELVERBOT: ARE WE

LOCKED OUT OF HEAVEN?

It is without a doubt “an exercise in the pornography of evil” (Dawes

2014a, 10). With all the paradoxes, the presented traumas wear out, get
cheap and facile. Black words amass on a screen instead of blood and
tears, emotions and destinies. Pornography suffers from the economic
law of diminishing return as virtually any addiction. It’s always too
much and never enough until, finally, the numbness of a vampire is
reached. But I cannot do any better in this medium. These are, so to say,
arpeggios from hell, “the most extreme arpeggios in lot of octaves and lot
464 Chapter 8

of different modes” (Cabrera 2012). It is hard to explain—an icon of gui-

tar shredding, full of gold trinkets, added in his hard Swedish-sounding
English, in contrast with his easiness of playing. The name for extreme
guitar practice stuck with me as appropriate metaphor in this context:
Yngwie, after all, has another Caprici di Diablo piece for those more theis-
tically minded.
In this section, I use various real examples, some that had global re-
flection, but many from a specific region and the country, which I think
adds to the comparative value of the work by not solely digesting the
widely disseminated horror but offering some more obscure but nonethe-
less extremely intriguing cases. 5 They are all universal anyway, and the
disclaimer is that they don’t speak of the viciousness of a nation or a
particular group. It is a series of short sketches, highlighting the features
that seem most evil in real anecdotes about violent acts. This may include
punishment, might call for it, or be done in a situation of mass violence,
but not as an organized formal killing on the battlefield, in the sense of
senseless slaughters of the First World War ditches or the despair of the
Waltzing Matilda. Although I present several cases of cruelty in the wid-
er or narrower context of war, as the introduction stated, war, most hor-
rific and brutal, is excluded as such, that is, where it takes most anony-
mous victims in civilian bombings and casualties on the battlefield. The
context, consequences, scale, and causes of these anecdotes are starkly
different, but all of them most probably contain something deeply repul-
sive for the common reader. The chosen form is to present them without
excessive interpretation but not abstain from expressing emotions. My
short reflections on them will include some particularistic bias, but I hope
such personal biases can be easily determined. I add some questions to
think about, not insisting on answers. The purpose is to get more or less
stripped, interpretively pending, and emotionally charged cases before
the next section, which builds on them by returning to the theme of evil.
The reader can do the mental exercise and observe any case from this
section through the lens offered by the narratives in the next one.
Let’s start with the matter of the first chapter where a story of the
death penalty was told from the vantage point of political theory with
some aesthetical extra footage. Usually, depending on experience and
ideological leaning, stories involved in death-penalty politics include the
execution of the innocent, death row horrors, and traumas of those in-
volved if the abolition of capital punishment is advocated, and the pre-
ceding “Thou shall not kill” breach when crimes are described, the suffer-
ing of the victims, and the cruelty of those who committed the crime
when the perspective is victim-centered. This vignette belongs to the sec-
ond genre, telling not about the evil and cruelty of the system but a story
about cruelty of the perpetrator through the prism of the death penalty in
the former Yugoslav regime, which was abolished in the first liberal-
democratic Croatian constitution from the 1990s that introduced the ex-
 Dismantling Sorrow 465

plicit “no death penalty” clause. I provide only few small cases from the
rich and picturesque history of the death penalty, which was generously
administered immediately after the Second World War but was used less
and less as the socialist modernization went toward its historical demise.
They might speak of evil.
The last post-Yugoslav death penalty was administered to Johan
Drozdek in 1992 in Serbia. It was an execution of a death sentence dating
back to 1988, from the times before the war, for raping and killing a six-
year-old girl. He was executed by shooting in Sombor, at the age of
thirty-four. Serbia changed its statutes later, commuting the remaining
death row sentences as late as 2002, changing penalties to forty years’
maximum imprisonment. In Slovenia, the northwestern republic, the last
death penalties were executed back in the 1950s in a political process.
Metod Trobec, thus far most famous Slovenian serial killer, had his death
sentence changed to the then-maximum of twenty years’ imprisonment
by the Slovenian Supreme Court in 1980. Trobec had strangled and
burned five women in a bread oven, events that inspired a Croatian
alternative rock band from the 1980s to take the name Trobecove krušne
peći (Trobec’s Bread Ovens). Trobec was aggressive in prison, tried to kill
another inmate and, as his sentence was prolonged, diagnosed with can-
cer; he committed suicide by hanging shortly after his mother died, after
spending twenty-seven years in prison, the longest sentence in modern
Slovenian history. However, the last death penalty in the former Yugosla-
via was executed in Croatia pretty late, in 1987, a few years before the
federal state began to fall apart, for a lurid crime in Karlovac from 1983. A
driver lent a large amount of money to his colleague; the colleague later
came back to steal the rest. Fearing that he would be discovered, he first
killed the driver’s wife in the shed with an iron bar, than he strangled
Dragana, the driver’s two-year-old daughter, and killed the younger
daughter Snježana, a baby of eight months still in the crib, hitting her
with an ashtray in the back of her head. He waited for the father and
killed him with an axe. Hitting the baby in the crib to put her to death
was particularly heinous; there was no purpose to the act, since the baby,
sleeping or awake, could not be a capable witness. Dušan Kosić confessed
to the police, giving details during a judicial reconstruction of the mur-
derous spree, but later retracted the confession. Nobody had seen him on
the crime scene. But after the driver was found dead, Kosić paid lots of
his debts. Another Dostoyevskian story, putting Stavroginesque strains
on the distinctions between good and evil probed in this chapter: what is
evil, if not the killing of the baby in the crib before it can experience life?
It is a murder of a destiny, of a world to unfold.
Another story associated with the death penalty in Yugoslavia is inter-
esting here. This one was not executed but the evil remains. Šefka
Hodžić, from the Muslim village Jusići near Zvornik in northeastern Bos-
nia and Herzegovina (BiH), couldn’t get pregnant after nine years of
466 Chapter 8

marriage, which arguably put her under quite a bit of pressure in a tradi-
tional cultural setting, a pressure that continued defying the ideological
narrative and political efforts of socialist modernization in Yugoslavia in
the 1960s. Her options as an illiterate village woman were constrained to
a single nonchoice: giving birth to kids, raising them, and taking care of
the household. Since for some reason she could not conceive, the internal-
ized pressure of proving to the local community that she was not “bar-
ren” led her to a bizarre crime. Her father had been killed in front of her
eyes when she was young, but Šefka was allegedly a village beauty. She
carried rags under her clothes and declared that she was pregnant, paral-
lel with her peer Alija Hasanović, who really was pregnant. Alone or
with accomplice—the versions differ—she killed Alija shortly before the
expected delivery of the baby, cut her belly, and took the baby, who,
predictably, died under such circumstances of a cutthroat amateur Cesar-
ean. Police quickly tracked her, found out that she wasn’t pregnant (al-
though she reported the death of her newborn, Fatima) and found the
murder weapon. She was sentenced to death and her husband to five
years as an accomplice but her penalty was, in a reopened trial, changed
to twenty years’ imprisonment. After twelve years of imprisonment in
Požega, Croatia, she was in 1982 released from prison on the occasion of
the Day of the Republic (a state holiday that provided opportunity for
amnesties and executive mercy) as a successfully resocialized inmate,
together with twenty-seven others. Rumor had it that she changed her
name upon release for prison and that she finally got pregnant and gave
birth (Balkanplus 2014). Her family moved out of Jusići out of pressure
and shame. Evil seems diffuse here in tracing causes and reasons, but a
dead twenty-six-year-old killed near the stream with her unborn daugh-
ter are a reason for sorrow.
Before we continue, I should explain the subtitle of this section, which
comes from a documentary about one more commuted death penalty.
We are still in the Balkans. Himmelverbot rendered as Oustiside—more
literally, locked out of heaven, as one might translate it with reference to
the actual pop hits—is an Andrei Schwartz 2014 documentary about
murderer Gavriel Hrib, whose life sentence was commuted upon Roma-
nia’s accession to the European Union. He left Rahova prison after twen-
ty-one years, which he served for killing the state attorney and her hus-
band in their home out of revenge after he had served a sentence of six
years for arms possession under the former regime. Without entering
into the details of the case, the motifs important for us are a commuted
punishment of revenge for a harsh sentence and, more abstractly, a cycle
of punishment where political and personal merge. The question is: Can
we, and will we, exit it? If so, is this section a waning drama, a series of
brutal anecdotes that say nothing of the history of the future? It may be
so, but the line between unbearable lightness and gravity still looks thin
and uncertain, and in any case does not stop the probing. The irrelevant
 Dismantling Sorrow 467

can do no harm, while the unbearable can in some cases be alleviated by

expressing it within a discourse.
War executions took place in Trnovo, again in BiH, in the summer of
1995. Perpetrators filmed them. Slobodan Medić, commander of the para-
military unit Scorpions, working in Croatia, Bosnia, and Kosovo, is seen
on a blurry footage. Soldiers with red berets and Kalashnikov rifles beat
people as scum, as living corpses to be executed without any dignity. The
victims are kicked as they are trembling and mocked how they “shit their
pants,” alongside accusations that they are not that brave as when they
were killing Serbs. Finally they are shot in the back while the man behind
the camera is rushing the execution because the camera’s batteries are
running low. Six were shot, first four and then the remaining two who
carried the bodies. Two victims were seventeen, one had turned eighteen.
The actions were part of a wider Srebrenica massacre where malice and
insensitivity in a prolonged big boys’ bullying session ended with death,
since the bullies were armed, in a war, and looking for revenge. There
was no scaffold pomp, simply slaughter. Framed by the executioners as a
retaliatory punishment and later, of course, as a war crime, the execu-
tions were part of wider scheme of ethnic cleansing. Confronted with the
footage, the viewer has the feeling the context and the Dawes-like evil
men do not explain evil away. After the war, in Belgrade, the Serbian
capital, Medić was sentenced to twenty years prison in 2007, twelve years
after the deed, when the political machine that produced him was dis-
mantled; the dreams of Big Serbia had been replaced by the sometimes
ambivalent narrative of European Serbia, still tossing an eye or two to
Russia. Medić died, together with wife and son, in a car accident caused
by a young drunk driver on New Year’s Eve 2013, on a local road in
Vojvodina, northwestern Serbia, when he was returning to prison.
The war crimes from Zvornik, also in BiH, replace the horror of the
footage with words alone. The genre is sadistic invention, impromptu
tortures and executions by drunken and vile executioners, small sove-
reigns politically mandated in the chaos of war. These war crimes against
civil population from 1992 were also tried about a dozen years later, and
prison sentences were imposed on the perpetrators in 2011, also in Bel-
grade, where a special court department dealt with crimes of the past as
part of transitional and postwar justice imposed by the international
community after the Dayton Agreement and during the European Union
accession processes and its conditionality. Actions included beating, forc-
ing the unlawfully detained to beat each other, or to perform sexual
intercourse. Cutting, stabbing, and killing were enriched with an almost
medieval invention: cutting of the skin, carving crosses, and Andrić-like
impaling through the anus with fatal consequences, not in a public place
but in a spacious enough temporary detention center of the communal
premises of the Cultural Center (Dom kulture) in Čelopek. Especially
prominent among the torturers is the name of Darko Janković Pufta, a
468 Chapter 8

member of the paramilitary unit Yellow Wasps, involved not only in the
anal impalement episode, which penetrated the victim up to forty centi-
meters, but also stabbing the victims as they prayed, and cutting not only
the ears in Reservoir Dogs style but also the penis of at least one victim.
The victims were forced to eat their cut off bodily parts. Pufta, recognized
by protected witnesses, received a fifteen-year imprisonment sentence,
negating the committed crimes—despite demonstrated evil in the excess
of sexually dimensioned humiliation and cruelty, a political de Sadean
theater of pain of the Other.
A completely different, seemingly disparate case on surface is neces-
sary in order to make a point that highlights an aspect that situations of
cruelty in captivity share. A gang rape took place in Delhi in 2012. In a
prison interview, Mukesh Singh, a slum inhabitant and driver of the
minibus in which the rape and beating took place and one of the perpe-
trators, said that women are responsible for sexual violence more than
the men who commit it. The metaphor of two hands clapping was used
in an interview, since decent girls don’t walk around at dangerous times,
such as nine o’clock in the evening, wearing inappropriate clothes. She
was gang raped and beaten with iron bars, together with the male friend
in her company, after they accepted an offer for a lift on their return from
the cinema: “When being raped, she shouldn’t fight back. She should just
be silent and allow the rape. Then they’d have dropped her off after
‘doing her,’ and only hit the boy” (Freeman 2015). After the mobile sadis-
tic session, both victims were dumped naked and badly injured on the
street. She died two weeks afterward in a hospital in Singapore, suc-
cumbing to her injuries. One of the perpetrators was sentenced to three
years of prison since he had been underage at the time of the attack, one
was found hanging in detention (with suicide as the official version of the
story), while the remaining four were sentenced to death, including the
interviewed driver who claimed he was only a paradoxical driving by-
stander, contrary to forensic evidence and some elementary logic. At the
time of writing, the death sentences have not been executed. In the village
of Katra in Uttar Pradesh, two years later, two teenage girls were found
hanging from a tree. They had been raped and executed by hanging,
police claimed; the suspects were caught and confessed (Banerjee 2014).
The later version was that the two cousins committed suicide, afraid of
the stigma of premarital sex in an extremely conservative social environ-
ment (Naqvi 2014). After a seven-year-old girl was found hanging with
ripped clothes from a tree near Rajnaga, a village in West Bengal, in the
same year, a mob of villagers beat the three suspects. The pictures dis-
seminated by the tabloids show naked bodies on the ground; one died
from his injuries (Kuruvilla 2014). A strange fruit, both on the trees and
on the ground, one might cite Billie Holliday, reminding us of the intro-
ductory conceptualization on punishment.
 Dismantling Sorrow 469

There are many faces of cruelty and senseless violence present in the
cases but I want to highlight one aspect before continuing. There is a
conversation in Dostoyevsky’s Idiot that discusses the death penalty. The
horrified prince describes an execution by the guillotine he witnessed in
Lyon, taking “Thou shall not kill” universally against the state, like
Kieślowski about a dozen decades later in Poland. As he describes it to
the servant, who has no concept of the guillotine, the prince’s point is that
the horror is in the period of awaiting certain death, knowing the exact
moment you shall be killed by the state from which, outside of adventure
movies and some miraculous occurrences, there is no escape. The mo-
ment of waiting, the last moment when the rack closes, is the most dread-
ful, the prince says (perhaps echoing Dostoyevsky), who finds it more
dreadful than the torture of the body and the rituals of physical pain. The
cruelty of the death penalty is that it destroys all hope, which shatters the
individual to be executed. It is not so when caught by private villains
with whom, despite their cruelty and the unpredictability of sadistic in-
vention, one can still hope: “There have been examples when a man’s
throat has already been cut, and he still hopes, flees, or pleads” (Dostoy-
evsky 2003, 23; see also Thomas 2005, 70–71). However, the distinction
might not be so firm.
Haneke’s Funny Games that parody “the pornography of violence”
(Haneke n.d.), first in an Austrian version in German and then in the US
version in English, provide a fictional example of two young psychopaths
without any clear motive torturing and killing a whole nuclear family:
the dog, the boy, and his parents. The feeling is that because of the many
thwarted hopes of escape, horror isn’t diminished. The real-life examples
from earlier passages in this book, involving various forms of private (if
there is such) and overtly political violence, state and extrajudicial execu-
tions pending and carried out, after all test the extreme fictional para-
digms nicely. The horror in the first executions may really be that de-
scribed by Dostoyevsky, although there is some minimal hope (sove-
reign’s mercy, perhaps, that is sometimes granted, even at the scaffold, as
Dostoyevsky knew all too well), while the situations that followed move
nearer to the other fictional paradigm, offering a strange blend of cruelty
and (un)certainty of death in the hands of paramilitary torturers and
executioners. Furthermore, contrary to the understanding of Dostoyev-
sky’s Myshkin, the argument could run that certainty may bring tranquil-
ity, while any degree of openness of the situation causes instinctive
scrambles, a rush of hysteria; instead of melete thanatou, a meditation on
death of the one reconciled with destiny, it is extra suffering of a fish
caught by the hook trying to catch oxygen from the air with still-red
pulsating gills. In any case, from the perspective of those awaiting death
and those who sympathize, evil seems to fit well in both genres of cruel-
ty.
470 Chapter 8

To this list I now want to add some more sexual violence. A pedigree
in psychoanalysis is not needed to see that sexual dimension might be
present in many more of them, but some do not sublimate it or move
beyond. Let’s take a look at a serial rape, without beating and death, but
still with a strong air of selfishness and cruelty, a local drama of sexual
gratification and humiliation. In a park area near Kolovare beach in Za-
dar, a seventeen-year-old high school student is lying unconsciousness.
As she regains awareness of the world around her, she calls for help,
seeking her mother and to get home. A passerby helps. According to one
of the versions, she had become drowsy and left a club at one in the
morning, with one guy, probably to make out, but who called his friends
for a sexual treat with a dead-drunk girl. She only remembers she had
sexual intercourse with two of them but actually she had sexual inter-
course with five of them, who took advantage of her while she was more
or less passed out. Police arrests then followed quickly and the five guys
are detained. They range from sixteen to twenty-two years old and are
presented as an informal gang of delinquents. The media instantly label
the case a brutal rape, but milder qualifications are then disseminated.
The initial police work suggested a charge of sexual intercourse without
consent, which is a felony punishable by six months to five years’ impris-
onment in Croatia, providing for cases where perpetrators did not use
force but the victim was tricked, in position of dependence, or simply not
able to express refusal, which a normal person could have ascertained,
but with up to three years’ imprisonment clause if they really did not
know but could have known, that is, if their fallacy was avoidable (otklon-
jiva zabluda). According to the newspapers, the public persecution later
went for a qualified type of rape (jutarnji.hr 2014): although regular rape
is, according to the actual penal law in Croatia, punishable from one to
ten years, harsher forms of felonies against sexual freedom done to a
vulnerable or close victim, specially providing for the case of sexual inter-
course or legally equivalent actions by more perpetrators, are punishable
from three to fifteen years of imprisonment. One of the accused was the
son of a former special police forces member sentenced for extortion, and
at least one of the accused emerged in another morbid hillbilly crime
case: stealing and killing of a pregnant mare, allegedly jumping on her
foal in the placenta they pulled out; at the time, the police only filed a
report for stealing meat, not for the torture of animals. The torture of cats
was also mentioned in passing without special elaboration, as common
local knowledge of neighbors who were tired of gang terror (Sviličić and
Karakaš Jakubin 2013). The accused were found guilty and the sentence
on the first instance court gave a bit clearer picture of the case of two
gang rapists and three serial rapists who took the stage later; the first two
were found guilty of a rape and got a bit less than five and three years of
imprisonment, while the other three were found guilty of a sexual inter-
 Dismantling Sorrow 471

course without consent. One of them got one year imprisonment and two
of them were sentenced to three years of probation (jutarnji.hr 2016).
The third case connects sexual violence with war, as does the eccentric
Zardoz made by John Boorman. Canadian journalist Amanda Lindhout
was abducted in 2008 by the members of Hizbul Islam, a Muslim funda-
mentalist militant group, and spent fifteen months in captivity in Somal-
ia. She was abused and raped, with citations from the Koran used to
legitimize the practice by her captors, in a style later developed by the
Islamic State when it comes to female slaves. After the ransom was paid,
she was released in 2009 and she wrote a best-seller memoir, A House in
the Sky. She converted to Islam in captivity but not genuinely. However,
she reported a religious experience, seeing herself from outside her body
during a session of abuse. She developed a psychological refuge, a place
to escape, which made it to the name of the book. She claims forgiveness
for her abusers, not exculpating them, but seeing them as a product of
war (Christie 2014). In terms of psychology, it sounds like a lighter ver-
sion of the Stockholm syndrome. Is evil explained away by the wartime
“culture of violence” she mentions?
Torture in the camps amid war, including sexual violence: even this
can be forgiven. We are now in the occupied east of Croatia during the
war and later on Serbian territory. Marijan Gubina is one of those who
experienced horror. Curiously, many of those who do so are not cham-
pions of hate. It is so with Gubina, who doesn’t hate the Serbs as the
1990s war enemies. After their door was broken in Dalj in summer of
1991, Marijan’s father was beaten until unconscious. His older sister was
raped by soldiers in front of the rest of the family, tortured although
pregnant, gave birth to a baby, and raised her son not to hate anyone,
according to Marijan’s account. He himself had been beaten numerous
times. The family was deported to camps in Dalj, and then to Vera and
Bobota. “I was a Serbian slave,” he said. He had to drag away the bodies
of the killed in torture sessions. Although they survived the camp, his
father—who enlisted to Croatian Army—was killed, and his youngest
sister died in a car accident. After two suicide attempts, he somehow
pulled his act together after 2000. He wrote a book, 260 Days, describing
camp experience that he had as a ten-year-old preadolescent kid, similar-
ly to Lustig (from our second chapter), who was cited as being interested
in the scenario to put the story on film (Vučković 2014). War, murder,
rape, brutality, and torture as normal: the cruel highlights of this story.
War doesn’t have to be proclaimed to be going on; the language of
war is highly salient in metaphorizing societal relations, from Foucault to
Enzensberger, molecular continuations of a Clausewitzian scheme in a
society. Sometimes the murder rate is high and it gets quite literal—for
example, in Honduras, or in a partially defunct state in Mexico, where
abductions and murders occur while the mariachi produce instant odes
to narco bosses. The widespread phenomena of gangs and a high murder
472 Chapter 8

rate plague Mesoamerica. Did the states emerge in the same way, follow-
ing Tilly’s metaphor of organized protection? Perhaps, but probably with
a bit more historical dignity and political teleology. Honduras has the
highest murder rate and the city of San Pedro Sula has the highest in
Honduras, with more than 1,300 murders in 2014 and a rate of well over
150 murders per 100,000 inhabitants, mostly associated with gang vio-
lence involving young protagonists—not as a moral panic but as a fact.
One story is about Anthony and Kenneth, the former a teenager (age
thirteen) shot in the head, and the latter a child aged seven, who was
tortured and beaten to death, both killed in La Pradera in San Pedro Sula.
It is a small-scale war, to an extent like the one sending refugees to a
surprised Europe, correlated with the immigration of minors to the Unit-
ed States. People run to the north and seek asylum. The story is about
corrupt or afraid state officials and about gang recruitment at young
ages, earning money through drugs and extortion, through abductions or
racketeering of inhabitants. The New York Times coverage speaks about a
Santa Barbara case, of a “11-year-old” who “had his throat slit by other
children, because he did not pay a 50-cent extortion fee,” and creepy
work experiences of a medical public servant: “‘At first we saw a lot of
kids who were being killed because when the gang came for their par-
ents, they happened to be in the car or at the location with them,’ said Dr.
Darwin Armas Cruz, a medical examiner who works the overnight shift.
‘Now we see kids killing kids. They kill with guns, knives and even
grenades’” (Robles 2014). The populist mano dura policies are ineffective,
transferring the violent element to prison without the pacification out-
side, intertwined with coups and feasts of political violence, with diffuse
agencies of political punishment following particular authorizations be-
fore the Hobbesian state: “Violence against certain groups is rationalized
and even welcomed. Impunity and repression undermine the rule of law
at every level and thus the cycle perpetuates itself” (Hume 2014).
We have suffering and killed kids in the preceding case. Several pic-
tures of evil, including the young and unprotected victims, are hardly
avoidable in this inspection. It is a manipulation of emotions, hinting evil
even when it has a happy end. The footage causes shock, a mixture of
intense sorrow and some happiness and hope, as pliers and saws pick the
pieces and cut the pipe. A living baby boy is found in the sewer, cut out
by firemen from the narrow pipe of a squatting toilet in the shared bath-
room where he was born by a scared young mother who afterward
alarmed the landlord and the rescue team arrived. The police later fig-
ured out that the woman who called for the assistance was the baby’s
mother, present and silent during the rescue operation of firemen and
medical team. The baby was placed in an incubator and the media re-
ferred to it as “baby 59,” because of the incubator number (Branigan
2013). The father did not offer support and the mother didn’t have money
for the abortion. Police decided not to press charges. Unlike the introduc-
 Dismantling Sorrow 473

tory case of a Malaysian mother’s pillow punishment, the case was re-
ceived with the mixture of condemnation and sympathy. Evil prevented,
cruelty before consciousness born in a moment of fright.
Child neglect and ethnographic photography. Russian photographer
Irina Popova worked on a photo essay of a family of heroin addicts,
parents of a toddler. After meeting the mother, Lilja, who was urinating
on the street as her daughter slept in the baby carriage, Popova accepted
their invitation and lived with them for about two weeks. Pictures from
2008 show a two-year-old daughter walk among the needles and filth
near her stoned parents. The pair broke up and the father, Paša, was
angry at the photographer for the publicity of the case, which brought
unwanted attention by the police and social workers. The daughter, An-
fisa, moved in with her father, his new partner, and her son. The photog-
rapher warned that not all is seen in the pictures: they were not bad
parents, and that the story is much more subtle and complex. Perhaps
this is a case where evil is in the eye of the beholder, manipulated by the
selectivity of the media and partial narrative?
Then we have the punishment of children for no apparent reason. A
video from Russia shows a strict nanny, Galina, punishing two-year-old
Vladislav. She locks him up and kicks him as the nanny-cam footage
shows. It is not as excessive as the young Malaysian mother from the
introduction, apparently wanting to smite her crying child instead of
comforting her. The shock is in the gratuity of one blow. This story from
Novorosijsk in Krasnodarska oblast, involves a boy standing and a vehe-
ment nanny’s hit on the back of his head. The parents became suspicious
after the boy had, for no apparent reason, become scared and introverted.
Nanny claimed she only wanted the best for the boy and that she loved
him. If there is evil, it might be in this blow with no reason or rhyme
(AmericanGirl 2014). It is an infliction of pain to the small and harmless,
as in Céline’s more inspired passages depicting the daily horrors of fami-
ly life.
The following case is extreme, hopefully not in its consequences, but
in the intention and the act: punishment of the unborn for the imputed
sins of the elderly. No, I am not offering a religious talk from a pro-life
perspective. In Kiseljak, BiH, a high school student of problematic behav-
ior, who lost the right to continue his schooling in that institution, was
especially keen to take his revenge on the Croatian language teacher
whose class he failed, among others. He waited for her to exit the teach-
er’s assembly room and punched her forcefully in the stomach. She was
six months’ pregnant and had the rounded belly of an expectant mother.
The police waited for medical results to press charges. Depending on the
consequence, from the point of view of the legal bureaucracy administer-
ing penal law, the attack qualifies either as a misdemeanor of disorderly
behavior or as a felony of inflicting minor or major bodily injuries. There
is no special felony provided in the penal law for this kind of attack, and
474 Chapter 8

regulations operate on the basis of expert judgment on the consequences,

which can hardly be conclusive in cases such as this, and demand time
before resolution.
One punishment is administered as a retaliatory punch to pregnant
woman’s belly. The disgust is associated not only with a cultural taboo
and evil of the simple fact of trying to harm an unborn baby, but with the
procedure that follows. A similar policy pattern in the work of the police
as the first link of the problematic system can be observed in my country.
The police force often operates in the wise King Solomon’s manner for
every attack, punishing both the attacker and the attacked. This finds its
discursive form in the stereotypical bureaucratic warrant for “the distur-
bance of public order and peace” (remećenje javnog reda i mira), especially
if there is no media coverage. According to this strange policy, if the
teacher defended herself, the police would have to accuse both parties,
which is a good step forward to paying a fine in a misdemeanors court. In
fact, there was such a case in Croatia recently, of an aggressive father
hitting the table with the teacher’s head, while the principal—who tried
to defend the teacher—got the remećenje javnog reda i mira accusatory
proposal, causing public outrage (jutarnji.hr 2013). Although things are
much more complex than this paralegal inertia of the police exem-
plifies—especially with some money, a good lawyer, and knowledge of
the system—there is an element of bureaucratic evil at work, as in the
case of the incarcerated autist we discuss later. The problem is further
complicated by the doctrinal idiocies plaguing criminal law dogmatics in
this part of the world, which is often quite stubborn in judging the deed
solely by its consequences, which might not be bad in some cases but it is,
scholastics aside, pretty obvious that similar intentions and actions may
vary in consequences for the reason of pure contingence. Someone who
wants to kill and who shoots with such intention might miss but this does
not make of it only a fired bullet: it is still an attempted murder. Pregnant
belly, or more usually someone’s head, is not hit but the intent is to inflict
harm, although the harm might not be inflicted. In some areas of special
protection due to advocacy of special groups or policy entrepreneurs, the
deed itself is criminalized; these range from reckless driving to forms of
sexual violence, but for some reason do not include regular attacks on
body and limb not involving cold weapons and firearms.
Disgusted with the deed and the policy, having kids myself, and
working as a teacher, in a generally more peaceful academia, but in the
country with low-level double jeopardy and a policy of bureaucratic pun-
ishment of those already punished by the destiny of meeting someone
aggressive and reckless, I come to the question if this is evil. The story of
the attacker is absent, the exact force of the attack not conveyed by the
typically undecidable formulations of short sensationalistic accounts. In-
tentions having to do with liability melt away if questioned: a young
delinquent probably did not understand or did not care for the conse-
 Dismantling Sorrow 475

quences and acted in a teenage retaliatory rage. The baby was not asked
and should now, in autumn of 2016, be two years old, like my younger
daughter. According to the newspapers and web portals, the doctors said
the mother and her baby were all right. The article mentions psychologi-
cal shock that could (it doesn’t sounds unreasonable from a lay perspec-
tive) also affect the baby in the womb, since stress tends to affect physiol-
ogy. The only comment under the text cynically stated that the Croatian
language is not important for washing people’s arses, that is, the aggres-
sive boy was studying nursing and had problems with his language
teacher, teaching him the subject not being quintessential for his profes-
sion (bh-index 2014). Disciplinary sanction for an attack on a teacher is
expulsion from school, which had already happened by the force of fail-
ing, but perhaps that disciplinary measure was instantly applied. This is
unknown to me, as are the later developments, but it is not of central
interest here. The article spoke about the thin line between being a bully
and a killer, and used the usual metaphors to describe the attacker, while
the police spokesman said that in any case the attack, according to posi-
tive law, could not be qualified as a murder attempt, entering into the
terrain of morality policies and the rights of the unborn. Whatever factual
development of the case was and whatever the position on these matters
one holds, the horror of punitive retaliation against the unborn progeny
of one’s teacher remains.
A father inadvertently kills his baby. Pain and death again, instead of
care: we return to situations when inexperienced parents do harm to their
crying and demanding children. Evil is in the silence of history before
YouTube, Internet amplification, and virtual pillory of every kind of vio-
lence that for a long time passed unnoticed in the shadows. Evil is in the
silence suggested by cases such as this: The mother worked and the
father had to take care of the baby. The baby cried and didn’t want to eat.
He threw the baby violently onto an armchair with wooden handles. The
baby girl hit them with her body and head, and was left unconscious. The
father tried mouth-to-mouth resuscitation. He washed her face, but the
baby did not react. The ambulance doctors couldn’t help either. Although
the father said that the baby choked when he fed it, her death was suspi-
cious to the authorities because of the hematoma on the forehead, neck,
and chest, as well as blood in the nose and mouth. The parents said that
one of them dropped the baby two days earlier. The autopsy revealed
that the head injury was the cause of death, alongside several broken ribs,
her occipital bone was broken, and there was a contusion of the brain in
the area of the right temporal lobe. The child died due to the brain hem-
orrhage. Another father, Eldar Leđen, only twenty-one years of age, had
abused his baby earlier, coping with its cries by shutting the baby’s
mouth with his hand. He confessed, crying, that he had inadvertently
killed his four-month-old son. The events took place in autumn 2014.
Leđen attempted suicide while waiting for the sentence. In spring 2016 he
476 Chapter 8

was sentenced to eleven years of imprisonment by the first instance court

(Klix.ba 2016).
Finally, we have a bunch of sadists punishing a kid they don’t like
until he dies. Although the competition is tough, this is a case that might
arouse the most redemptive emotions in this section—a simple narrative
that gains momentum, together with callousness and normalization of
violence, until tragedy emerges as a logical outcome. The evil is in the
whole story, especially in the details. It is in the question: What made
them do it? Why did the kid deserve such bad luck, not one of accident
but of sustained lack of care, prolonged fear, and torture by those closest
to him?
Violence happens in a Bosniak family living in Hadžići, a part of Sara-
jevo, the capital of BiH. Mother Ena in her mid-twenties, uncle Kenan,
grandmother Munira, and grandfather Emir all participate in the beating
of young Smajo, until he dies from the consequences of one of his step-
father’s Salih’s torture sessions. Although it was first thought that he was
strangled, he died from head injuries caused by a blunt object. His step-
father drove away after killing Smajo and mother said that he had prob-
ably beaten his stepson because he looked like his father. The mother’s
narrative recounted in the newspaper shocks because it reveals how vio-
lence builds by small steps and escalates into an avalanche of evil. After
the stepfather moved in, everything was more or less OK the first month,
while the second two gradually bring more horror. Or, almost every-
thing, since the mother recounted how after the first week Salih hit the
boy because the boy didn’t want to call him babo (dad). He hit him every
time the boy didn’t call him that and slapped him every time boy did not
kiss him on his return from work. The stepfather used drugs—smoked
some pot, but also took speed, and beat Smajo harder when he was not
sober. He would grab the boy’s neck and hit him in the chest. After a
short pause because of the boy’s illness, the stepfather would start beat-
ing him again, harder and harder, without any special reason, the mother
said, often when he was nervous because he was short of drugs. He beat
him with hands and the belt, and put a rag in his mouth so his screaming
was transformed only into silent sobbing. Only the mother saw the
bruises on her son’s body since she washed the boy and changed his
clothes. Like Rejali’s torturers, the father to an extent practiced silent
torture techniques in a revolving daily horror.
Then the one-sided story becomes strange, elliptic, which boosts its
emotional effect. The mother returned from the doctor and saw the boy
had a wound on his head and bruise under one eye. When she put him
on the chamber pot to pee, she saw a wound on his glans (begin a Mus-
lim, the boy was circumcised). The father said nobody had beaten the
boy, but in the night the mother woke up and saw the boy standing
before his stepfather, and she heard how Salih threatened the boy, telling
him how he was going to tie him if he wouldn’t listen. In the night, on the
 Dismantling Sorrow 477

way to the bathroom, Ena saw the boy tied; on her return, he was untied
but he couldn’t stand on his legs. The stepfather said they should take
him to hodža, a Muslim priest, whereupon the hodža said the boy was in
trouble (ograjisao je) and that they should return with him in ten days. The
word used, ograjisati, can be used metaphorically, but in the Islamic tradi-
tion in BiH, it refers to superstitions about black magic and spells (sihiri),
associated with bad people and sheitans, the devils or the demons, having
their medžlis or assembly beneath a certain tree, with black cats, and so
on.
On the fatal day, Salih, who had taken some speed, slapped young
Smajo for not kissing him. When the mother returned from shopping, she
saw that her son has been beaten again and that Salih powdered him
(there is no explanation for this—maybe to cover the bruises). After
lunch, he continued beating Smajo with his belt and punching him. Ena
also hits him once with belt to his head, but the reason is not stated. The
boy loses consciousness after Salih punches him in the chest. They bring
spoon and water, they open Smajo’s mouth with the spoon, and Ena
sprays him with water. The boy vomits and defecates. Salih says to the
grandfather, Emir, that the boy isn’t OK and Emir covers him with blan-
kets and takes him away. Ena, who offered this account, had left her first
husband with two kids, claiming he abused them. She met Salih in a fast
food joint where she worked and went to live with him, leaving the kids
with her parents, whom she did not contact. She returned and Salih
moved in with her two weeks later. She said that her parents accepted
her five-year-old daughter but for some unspecified reason not the un-
lucky boy, who was maltreated, slapped, and “put under the table.” Al-
legedly, Salih said the boy should sleep with them and that they should
provide him the loving that he needs.
The blue-eyed boy, compared to an angel in the media, looking like
his father, died with thirty small wounds and several bigger ones in-
flicted with wax, nails, and fists on his body. The ellipses from the moth-
er’s account were later filled in: Salih, as some character from de Sade’s
novel, dripped hot wax onto the boy, including his anus and penis, which
he also pulled with pincers. The boy’s genitalia were severely injured.
Salih hit Smajo’s head to the wall and burned him with cigarettes. Ena,
who was also pulling his penis as punishment, had beaten the boy with
the roller, oklagija in Bosnian idiom. She hit him with the metal part of a
belt on his head, which she confessed was one of the decisive blows in a
final torture session when they pressed him to the floor, hit him as he
bounced to the floor or to the walls, and continued to hit him after he
vomited and defecated, perhaps because of it, as the loud music they
turned up muffled the sounds of torture (Doznajemo 2014). Defenders of
the four accused (the uncle wasn’t tried), pleaded various exculpations,
trying to frame it solely on the father, the nonliability of a deranged
mother, and the noninvolvement of the grandparents in the murder (Fak-
478 Chapter 8

tor.ba 2015a). Forensic experts established a slight mental retardation of

the mother and agreed that she was easily subject to various influences
(Faktor.ba 2015b). The court sentenced Ena and Salih to forty years’ im-
prisonment and the grandparents each to two and half years in a case
that, judging by the media, horrified the nation. When beating Smajo, his
grandparents swore and said that he looked like his father (Jebo te otac, isti
si on). The Internet pillory called for more metaphysical punishments by
Allah, seeing every misdeed or wish of eternal Jahannam through the
more traditional repertoire of simple stakes and impalements, lashing, or
the big gibbets, up to the creative extremes of cooking them in oil and
letting rats eat them while still alive, at the end burning them so as not to
poison the ground (Doznajemo 2014). The commenters expressed retribu-
tive rage wanting the torturers to feel something of the pain the boy had
felt and even volunteered as executioners. This kind of discourse is, of
course, familiar to all the Internauts meditating on the faits divers crimi-
nels, but this went a bit further or was one of the cases where outrage was
extremely high and in unison.
Ograjisao je. Smajo Ćesir was jinxed indeed. The exact details in the
rashomon of family violence may change but the whole of the story can be
more or less easily concluded from moral and legal points of view, or the
one of science, social or interdisciplinary, closing the equation of factors
leading to violence and death. Mother and stepfather were punished
with forty years’ imprisonment, maternal grandparents with two and a
half years each, the responsibility of social workers and neighbors was
mentioned. Horror remains. The question from the point of view of theo-
dicy is, why did a boy have such a bad luck to be tortured by those who
should take care of him? He did not die at the hands of the enemies,
committing a war crime. It was not an earthquake or a plane crash. This
kind of pain of a young human being seems unfair beyond unfairness;
spoken in the language of the biblical tradition, some have the bad luck of
servants from the Gospel by St. Matthew. While in some fortunate cases
of human destinies, talents and luck are multiplying in a piece of proto-
capitalist bliss, others receive close to nothing and even that is left to rot
in the ground. Smajo did not get a chance. And, where was his father?
It can hardly get worse than this. If life is retained, things are usually
better than when it is lost. However, eye gouging makes us especially
sensitive. Eyes are windows to the soul, as in one of Steve Vai’s lyrical
guitar instrumentals, reviving the familiar metaphor describing the pre-
ciousness of eyes to human species. It takes special insensitivity or malice
to dig them out, which was done in the following case. The victim stayed
alive, receiving glass ones after the session of violence. The bizarre
circumstances are one of a satanic ritual, seemingly combined with ex-
treme superstition, in one of the typical stories that plague British tab-
loids, and then all others following them, often involving witch doctors
from the Dark Continent. This time, however, the action takes place in
 Dismantling Sorrow 479

Nezahualcóyotl in the state of México. Grandmother, grandfather, two

uncles, aunt, and mother perform a satanic ritual that should save them
from the earthquake. Five-year-old Fernando Caleb Alvarado Rios is or-
dered to keep his eyes shut but opens them in fear and cannot keep them
shut as commanded. Her mother and her sister dig his eyes out with
spoons. Googling the issue shows, besides a quite loony-looking mother
with an air of a caught wild beast, confirming some of Lovecraft’s politi-
cally incorrect descriptions of the Cthulu Mythos characters, and the boy
with the eye mask—shows the metonymy of two teaspoons. The incident
took place in 2012. The mother was sentenced to thirty years of imprison-
ment (Joshi 2014).
Some motivations don’t look too instrumental in earthly terms either.
To the delight of the tabloids, and in their own language too: young
psychopaths often rave about Satan. Seventeen-year-old Jose Reyes, with
the help of year-younger accomplice, wanted to sell his soul to the Satan.
They killed fifteen-year-old Corriann Cervantes as the session of drugs
and sex escalated into a sadistic murder in an apartment southeast of
Huston. She was beaten with an ashtray and the porcelain lid of a toilet
tank, stabbed with a screwdriver, and strangled. Her eye was gouged out
and a reversed cross carved on her abdomen. For capital murder, Jose
Reyes received life in prison. Victor, his juvenile assistant, was tried as
adult for the same thing and later received the same sentence (Wagner
2015). With or without glasses and superficial changes of appearance in
the courtroom, Jose’s look could be described as one of dreamy smug-
ness, a look that would nicely fit the androgynous devils in Gibson’s
religious movies, if they should use drugs. He claimed that devil was
watching him and that he acted on his instruction, his autonomous agen-
cy striving to please him. He referred to the sixty stabs with a blunt value
judgment: “It’s all good. It’s what the Devil asked for” (Crimesider 2014).
The story of Srđan Mlađan, one of the most famous Croatian serial
killers who, in an acte gratuit, killed a bypassing girl and then later a
policeman in an episode that involved keeping a family hostage on his
weekend leave from prison, is not that dissimilar; the prior signs of Satan
worship, which Jose’s parents observed, was not mentioned, but the inti-
mated fact that he rented a copy of Natural Born Killers fifty times from a
video rental store in the small Croatian town of Sisak, marked by collaps-
ing ironworks and air pollution left from the socialist era, is telling. Earn-
ing a clichéd media nickname of sisački monstrum (“monster from Sisak”),
Mlađan was a beloved single son, raised mostly by his two aunts and a
grandmother. He trained hard and became a young wrestling champ but
the adolescent crisis brought, as newspapers accounts had it, conveying
bits of psychiatric discourse, “psychotic decompensation with visible
signs of a psychosis” (Karakaš Jakubin 2014a). Much later, writing to the
parents of his first victim (who were not enthusiastic; the mother said,
“Every lion becomes calm behind bars but starts slaughtering when let
480 Chapter 8

loose”), he framed his act in interesting terms, discarding any instrumen-

tal explanation. It was not “pleasure or some perverse satisfaction” but an
act that had a telos in itself: an “act of evil that was evil in itself for which
at the time I did not believe it existed” (Mlađan 2011).
To continue to the theme tackled by Kekes: one killer seems unavoid-
able in this context: killer as an old mystic, evil as manipulation. No, it is
not Jim Jones, a Daffy Duck–sounding prophet in an eerie perfect tense
addressing People’s Temple members in Guyana, insisting that they
“didn’t commit suicide” but “an act of revolutionary suicide,” with cult
members giving their children “a bit bitter tasting” cyanide Flavor Aid to
drink (Collins 2011), making them a part of what is usually described as
the biggest mass-murder/suicide in American history—reminiscent of the
smaller scale historical moment depicted in Der Untergang, when Magda
Goebbels poisoned her six children in the Führerbunker. The horror of
manipulating people to kill about fifty times more of their children than
Magda Goebbels managed is beyond even this chapter. This manipulator
is more famous, even if he worked on a smaller scale. Much has been
said, and most of it is known about Charles Manson, the Manson family,
the Manson murders, about the death sentence, and its commutation
because of the ironies of history that put the Furman vs. Georgia Supreme
Court case in chronological place after the event and the trial. It left
Manson living, writing, painting, and giving interviews, now as an old
man with a long beard and a swastika tattooed between his eyes (the
Nazi one, with die Hacken facing right). Interest in him still hasn’t disap-
peared yet. In 2014, an interview with Manson appeared on a Croatian
web portal, keen on conspiracy theories among other things, framed as
exclusive (Manson 2014). Surprisingly enough, although a bad transla-
tion suggested copying from a foreign source, which is not unusual on
Croatian web portals, it also appears on Manson’s website under the title
“Interview with Croatia” (MansonDirect 2014). The thing is authentic,
even if the translation to Croatian is clumsy. 6
Manson was asked about Hitler. It was a sensitive question since there
is an interpretation of Manson as a bitter failed musician, similar to the
simplistic explanation of Hitler’s political positions—or even the Second
World War or twentieth century—as a consequence of a bad painter not
qualifying on the admissions exam to academy: “Those to whom evil is
done do evil in return,” as W. H. Auden states in September 1, 1939.
Manson responded that the interviewer could not know what Hitler had
thought since she was not experiencing the circumstances Hitler had
faced, and claimed that Stalin had saved Russia but was declared a tyrant
upon his death. He further said that he had nothing to do with the mur-
ders, as with the deaths of those in Vietnam or Korea. He never ordered
the murders, he claimed, nor the breaking of the law: “Death and life
were in the street every day and that wasn’t my problem.” Manson stated
that he had a terrible childhood but was not beaten and did not seek
 Dismantling Sorrow 481

excuses for what he had become. He also claimed that human beings
are—besides being “mushrooms” and “rabbits running through the cos-
mos”—”a piece of filth floating through the abyss.” He also stated that
one cannot change yesterday, that there is darkness and light in human
beings, and that he chose to live in darkness. Asked about his seemingly
high opinion of himself, Manson answered, “There’s no self. Self is a
game your mother plays.” It was, in other words, an eclectic blend of
structuralism of the situation, historical and familial, even with hints of
psychoanalysis and a talent for pithy apothegms. At the same time,
uniqueness and decision capacities of the subject inhabiting a Manichean
world of good and evil were highlighted together with ultimate insignifi-
cance of a singular life. Alongside that, some mysticism was offered,
resembling the Gaia theory where Manson apprehends strange subject
positions as if he were the spirit of the Earth and Satan was devoid of
church, since he is equated with it. 7
We face the killers as the ones who were punished in the above-
mentioned cases, by death or imprisonment. This theme is serious, of
course, but comes out as a cliché since it has been massively regurgitated
in discursive venues and channels from tabloids and films to psychiatric
studies. Croatian Monsters, for example, was the title of a short publication
with a morbid jingoistic subtext, dissecting the killers interesting to the
national media and public. Sometimes the story emerges of a trauma and
an impulse to reproduce the pattern, or some kind of incurable narcis-
sism unable to see any purpose in others. Peter Lorre from Lang’s M, a
whistling sexual murderer we have already encountered, cannot help
himself. Let’s take the case of recently deceased Émile Louis, a French bus
driver sentenced to life in prison a quarter of a century after the case.
Louis was sentenced as the killer of seven handicapped girls in 1970 in
Burgundy. He retracted his confession. Louis was abandoned, allegedly
raped as a young delinquent in a correctional home, and entered Légion
étrangère, fighting in Indochina. He built a career of sexual delinquency,
violence, and imprisonment, involving a case of sadomasochistic séances
involving his former wife and stepdaughter. He found work as a janitor
and as a driver, and began transporting (and sexually harassing) the
handicapped for the DDASS (La direction départementale des Affaires sani-
taires et sociales), an institution involved in serious scandals for pandering
mentally deficient girls without families under their auspices. The case
reeks of evil but not of the autonomy of an evildoer but of a hard biogra-
phy and institutions; not the mystical Harcamone from Genet’s The Mira-
cle of the Rose and The Pogues’ Hell’s Ditch, but cruelty reproduced, Louis
himself, an ancien enfant of the DDASS.
Another genre completely, and many more victims: It is instant mass
politics of death instead of one man’s life-long sexual policy of thanatic
abuse. Anders Behring Breivik killed seventy-seven people in the sum-
mer of 2011 using a bomb and firearms. His motivation was explained in
482 Chapter 8

a lengthy compendium blaming “cultural Marxism” for the decay of Eu-

rope. Breivik affirmed patriarchy and offered a sort of Gramscian mani-
festo against Gramsci, explaining how to fight and other tactical issues
for those who, following him, see themselves as an operational avant-
garde fighting against the future Islamization of Europe. The Norwegian
justice system did not have much understanding for such a political man-
ifesto and its author, a young adherent of Odinism, who did not back up
and show remorse. Unlike Hamsun, who in his times said America was a
“mulatto studfarm,” sent his Nobel medal to Goebbels, and wrote a eulo-
gy for Hitler after his death to be later paternalized by psychiatric dis-
course, Breivik wrote nothing like Hunger and probably will not write
something like On Overgrown Paths.
After Breivik was diagnosed with schizophrenia and then, not sur-
prisingly, a narcissistic personality, he was sentenced to a maximum of
twenty-one years in prison but with the clause of preventive detention
that can be extended. The story is one of the horrifying moments of the
new political landscape in twenty-first-century Europe. An interesting
detail, however, on fathers and sons may have escaped the attention of
the reader. Breivik’s father, a retired diplomat, was interviewed by the
tabloids. He regretted that he hadn’t done anything: “In the garden of a
hotel near his home, he admits not doing enough to prevent his fascist
son, now 35, carrying out the killings—the worst ever mass murder by an
individual” (Parry 2014). He especially regretted not getting custody,
since it was not at that time usual for fathers to get it. The sad father said
he believes that his son received just punishment. He believes there is still
humanity in his son, but on receiving a cold response from his son that he
wouldn’t meet him unless he (the father) supports him (the son) political-
ly, the father expressed the reasonable opinion that his son “is getting
more and more extreme.” If they had a chance to talk, the father said he
would have asked his son the question placed at the very end of the
article with the excerpts of the interview: “What made you become so
evil”?
It is not always politics. Perhaps it is just a chance, a series of
chances—that is, causality, like in Anderson’s Magnolia where a suicide
jump from the top of the building that was to land in the firemen’s net is
met with the mother’s fatal gunshot from a flat below, as coincidental as
frogs falling from the sky (if one does not read Exodus 8:2). In this case
we seem to face a misperception of a sensitive, disabled subject and a
grave consequence, evil as the way of the world. Oscar Pistorius, a world-
renowned running champ with carbon fiber prosthetic legs shot his girl-
friend, model Reeva Steenkamp, in his home in Pretoria, on Valentine’s
Day 2013. His defense was that he had mistaken her for an intruder.
Judge Thokozile Masipa accepted that the murder was not premeditated
and sentenced him to five years of prison for culpable homicide—that is,
manslaughter—claiming that a punishment not involving prison would
 Dismantling Sorrow 483

send the wrong message to the public, while a longer prison sentence
would not be appropriate because it would mean a lack of mercy. After
the Supreme Court of Appeals changed the qualification to murder, Pis-
torius was resentenced to six years’ imprisonment.
A cannibal chef, as the press quickly calls him, kills his wife, chops her
to pieces, and cooks her in Brisbane. Both are in their late twenties. A foul
smell of “dog food or red meat” left to rot is quoted by the neighbors,
who made the call (Morrison 2014). He kills himself with a knife in a
trash bin while running from the police, who also offer naturalistic ac-
counts of the foul vapors, as did the electrician who had been called
because of a pot that had boiled over and so turned power off while the
killer was still disposing of the body in a gastronomic manner with the
excuse of cooking a “pig’s broth” (Moncur 2014). As the story unfolded,
he turned out a bit mysterious to at least some of his interviewed friends,
but as an average guy for most of them: he liked comic books and karate,
he opposed violence against women and animals in his social network
activities, and liked rock classics like the Queen, Pink Floyd, Metallica,
and Led Zeppelin, uniting in a playlist for his funeral (Blidner 2014).
Tabloids are, however, delighted with the profile of the victim: a pretty
transgender sex worker, Mayang Prasetyo, working at the drag cabaret,
Le Femme Garcon club, and as an escort. Prasetyo was born in Indonesia,
sending earnings to her family, supporting a single mother and two sis-
ters, originally a boy, named Febri Andriansyah, “a preoperation trans-
sexual” who identified as a girl from an early age (Crane 2014).
They met at the Pleasure Dome brothel in Melbourne, where they
both worked, and got married in Denmark; Marcus Volke also worked as
an escort under the name Heath XL (Crane et al. 2014). Although the
media tried to capitalize on the cooking psycho story—even a morbid A
Cannibal’s Cooking Pot Facebook profile of business activity appeared as-
sociated with the murder location (Facebook 2014)—as an example of
exophagous anthropology, disposing of the negative energy of the bodies
of the criminal, enemies, or whoever associated with the evil forces
through eating, the tabloid craze faded a bit, giving place to the narrative
of the botched disposal of the body in a domestic dispute. What could a
cook do after all? Language in the story was noticed not to be neutral,
distorting yet another banal and sad case of domestic violence: “the race
to the bottom category in the process,” the “‘othering’ language” of
stereotype conforming Indonesian she-male: “Tell people often enough a
murder victim was a sex worker or transgender, and readers will begin to
associate both as factors for someone’s murder. . . . At the end of the day,
another woman was killed by a man” (Gray A. 2014). Crime of passion, a
human interest story, evil behind the bizarre, freak show for the easy
entertainment—the facets of the case faded into oblivion, the mother for-
gave the killer, and the circus left town.
484 Chapter 8

In Croatia the public faced many strange cases as elsewhere, such as a

drunken mortician collecting penises of the cadavers—it was not pickles,
when the jars were accidentally found (see Balen 2014)—but not media
cannibals lately. However, the Croatian media, as we have seen, like to
talk about monsters as well as they like to talk about heroes, and it is
sometimes the case that they talk about same person. Heroes become
monsters. Some of the newfound horror is attributed to the changing
context. From a cannibal cook, who probably did not eat a single chunk
of human meat, in this case we roll back to simpler political and war
monsters. Ivan Korade, a Croatian general, lost his left hand when a
grenade struck near his car. It is a story about a tragic figure, a war hero
who became an after-war monster and was posthumously deprived of
his medals and honors. After the war, drunken violent incidents, some
pretty sadistic and prolonged, ensued. This resulted in the then-sove-
reign’s decision to retire Korade in the 1990s; although he almost started
a small putsch, the renegade general was arrested by the military police.
He continued with violent episodes that culminated in a thus-far unseen
killing spree in Croatia that ensued after a drunken brawl in 2008: Korade
killed four persons with whom he thought he had some unsettled issues,
including an old women and her grandson. On the run from the police,
he was finally discovered as he shot and killed one member of the special
police forces. The official version was that he then committed suicide and
that police had found him dead, but rumor had it that police executed
him. He was already violent before the war, his son continued with vio-
lent incidents after his japa (father in one of the Croatian dialects) was
killed, being a frequent guest of the black chronicle in Croatian news-
papers in constant conflict with his social environment. Korade was born
and died in Velika Veternička near the mountain Ivančica in Zagorje,
north of Zagreb. My interpretation in State and Crime (Petković 2013,
142–50), discussing politics and violence in Croatia, was that his case was
a sort of apotheosis of revived and abandoned Foucauldian sovereign
power not being able to fit the peacetime discipline. Korade was a sort of
a Croatian Rambo, a tragic violent figure like the one from the excellent
film by Kotcheff often overlooked or devalued because of the notorious
franchise that ensued. The violence continued locally: his son, from an
upstanding figure of a son of a local power holder, turned into the son of
a monster, a pariah in perpetual conflict with the world.
There is an interesting subgenre of gruesome stories, subsumable
under the label of arpeggios from hell, where the evil consequence fol-
lows from a straitjacket of psychology. It is the pathology of cover-up,
evil coming out of an attempt to sustain false reality. A Croatian security
guard strangles his partner, who also supports him economically, and
tries to cover up his crime. It started slowly: He spends the war years in
the army, but he is a gambling addict and his marriage from the 1990s
with two children falls apart. One of the kids is disabled. In the 2000s he
 Dismantling Sorrow 485

gets a job as a security guard and starts a relationship with an electrical

engineer at the company. His post is at the entrance to the company
facilities, where he works as a contracted out security guard. They are
both in their forties; she is two years older than he. He moves to her
rented flat, where she moved from the province. He moves out back to
his parents, and returns. They argue a lot: she wants kids since she hasn’t
any and her “biological clock” is ticking, while he doesn’t want any more
kids. She lives on her salary and she feeds him as well as she finances his
addiction; he lies that he needs money for alimony and care for the kids.
He owes money on all sides, including loan sharks and his partner’s
family. An argument about kids starts. He later says she kept nagging.
He blacks out and strangles her. He takes her credit cards and her mobile
phone. He withdraws thousands of kunas from the ATM and sells the
mobile phone. He spends all the money on gambling. He returns to the
flat at four in the morning and lies beside her. As the body starts rotting,
he burns incense to cover the smell. He covers the body in a layer of
sheets and a rug, puts a plastic bag on the cadaver’s head. He gambles
again and returns. Answering phone calls, he lies that his strangled part-
ner is ill and to others that he is in the hospital and has some serious
problems (which is sort of true). He strangled his partner on Thursday
evening; her parents enter the flat and find her on Monday morning. His
acquaintances describe him as a liar, a chronic gambler, and a manipula-
tor (Karakaš Jakubin 2014b). He drained her money and finally killed her.
Eventually, he contemplates suicide as police and loan sharks are on his
tracks, and so he turns himself in. He is sentenced to thirty years of
imprisonment and compulsory treatment for the gambling addiction.
There we have another Dostoyevskian character, one who reminds us
of the older French case about a fake doctor from eastern France who,
after not taking a second-year exam when studying medicine and drop-
ping out of college without a diploma, starts building a parallel world
where he fulfilled his studying tasks, got a diploma, and works for the
WHO office in Geneva researching arteriosclerosis. He manages to sus-
tain himself, his lie, and the family economically from a sold house and
loans from relatives, whom he deceives that he is investing in hedge
funds, and also as a smuggler (passeur) carrying contraband over the
border for money. He wanders around and spends time during fake
business trips in the hotel room, where he reads professional journals and
impresses professional doctors, “fellow cardiologists,” with his knowl-
edge. He beats his wife to death in the evening with the help of a rolling
pin, a rouleau à patisserie, weapon earlier used in this section in a different
language and with similar consequences, and goes to sleep. Next day, he
shoots both his kids in the head when they’re asleep in the evening. He
travels to his parents and kills them. He also kills the dog. He tries to
strangle his ex-mistress. He sets the house ablaze and takes expired bar-
486 Chapter 8

biturates in a failed suicide attempt. He is saved by the firemen, who

think he is in a state of shock.
As the mosaic is assembled, the horror emerges. Some more suspi-
cious deaths that were before seen as accidents appear in a new light: his
father-in-law’s deadly accident on the stairs several days after he made a
request to get some of his “invested” money back, and the violent death
of his landlord’s brother, who was beaten to death and died in a car
explosion. Our perpetrator wakes from his coma and is sentenced to life
imprisonment. He is diagnosed with a narcissistic personality disorder.
Jean-Claude Romand, born in Jura and living a bit more to the south, in
small village of Prévessin-Moëns in Ain, near French-Swiss border, man-
aged carrying out his deception for almost twenty years, but his greatest
evil is perhaps in killing the kids while asleep with the resoluteness of
Magda Goebbels. As the press reiterated, he was watching TV that night
à côté des cadavres before setting out to kill his parents the next day in their
home in Clairvaux-les-Lacs in Jura. One of the films based on this case is
called Nobody’s Life. In his BMW, the gendarmerie found a short note that
stated (Aubenas 2007): “Un banal accident et une injustice peuvent provoquer
la folie. Pardon.” (A banal accident and an injustice can provoke madness.
I’m sorry.) In another ironical twist, Romand’s baccalaureat essay in phi-
losophy revolved around the following philosophical question (Kessaci
2010, 35): La Vérité existe-t-elle? Does truth exist? The case is often present-
ed as an extreme case of mythomania, a mind-set that may be, at least in
the less drastic forms, widely spread across populations, enabling hu-
mans to depart the reality of the present moment, presented even as a
“foundation of our destiny” (Cyrulnik 2002). Less metaphysically, it was
a desperate attempt to preserve the illusion in an extreme case. A life of
lies was above the lives of his family and relatives. It was the only thing
worthy for the subject in this story.
Contrary to the evil on the lips of the characters and a professed
worship of it, farcical or heartfelt, and the unique pathology of killers or
the depths of psychology, some acts of violence and punishment look
banal, thus making the consequences look worse. The acts are perhaps
more evil because of their sheer senselessness and thus seem appropriate
to be listed here. It is Arendt, but not exclusively.
Let us first take a look at the diffuse stupidity of a drunken brawl. It
has many agents under influence, but the feeling is that evil is best locat-
ed in the sheer stupidity of it all. The case comes from Croatian province.
A weekend night has a father in his fifties seeking justice for his beaten
boy. On the feast of Ilinje, the local Serb population drinks much. The
exact details are a usual rashomon. Mirko Božić is accused of cursing
another’s mother in a drinking session in a tent. He claimed he was hit
from behind in his head and that he did not want to return blows. How-
ever, he then threw bottles at his attacker. He and his friend were at-
tacked in return but the special police arrived and calmed the incident.
 Dismantling Sorrow 487

Apparently, a follow-up showdown was agreed upon so at a nearby

restaurant, a fight started. The boy’s father was then hit with a wooden
plank and killed. Some of the attackers tried to help the struck father but
it was too late (Pušić 2014). An amicable drinking session ended up in the
death of a concerned father, upset by his son’s bruised face. The feeling is
that it is not a mere morality policy anecdote calling for prohibition in
another country long after its 1933 repeal in the United States. A modern
anti-drinking league would have some good points, since correlations
between alcohol consumption and violent crime stand firm almost uni-
versally, but a pointless dynamic in these kinds of situations seems to go
a bit beyond.
Or the banality of evil by bureaucracy: there are films, belonging to
the Romanian New Wave, like Puiu’s The Death of Mr. Lazarescu that
exemplify this type of evil. Already the name suggests a certainty of
death, but it is brought about not by a single evil blow of an Elizabethan
drama evildoer but by a series of small negligences and rational irration-
alities of selfish agents, street-level bureaucrats in a medical system. The
patient, who has to be operated on, is sent from hospital to hospital in
Bucharest. The only one who takes care of him is his guardian angel
paramedic, nurse Mioara. There is more to the story, and it’s doubtful
that old grumpy drunkard Dante would have lived, but the idea of what
the archbishop of the Catholic Church in Croatia called the “sin of struc-
tures” is worth preserving here: nobody is particularly evil; many of
those are brought together, each a bit negligent or overly arduous in a
part of larger bureaucratic machine with various cogs and wheels, and
the outcome is supremely evil. Voilà, the death of Mr. Lazarescu. It is
kind of structured bystander scenario or situation, as a paradigm of evil
outcomes for unlucky individuals. There is no such thing as a dramatic
outcome in the real case taken as example, but its details may still cause
pain.
A person from Croatia, diagnosed with autism, turns eighteen and,
after a series of events, has been sentenced to spend a month in a prison
hospital in Zagreb during the summer. The forensic expertise waits for
autumn, since bureaucratic inertia also suffers from summer breaks. The
facts are the following: he injures his mother in a brawl and the deed is
qualified as a murder attempt demanding detention, against the will of
both his parents. His medical history is one of epilepsies, pervasive de-
velopmental disorder, hyperactivity, and so on. It involves aggressive
reactions involving food: he is fixated on food and weights more than 130
kilos. He becomes aggressive when food is denied. He finished primary
school from his home. In that incident, his mother approached him from
the side and threw the portion of food he was cutting out the window. He
swung with the knife and cut her, but he himself called the ambulance
and cried, as the parents recount the tale. The catch is that he is, by the
system, treated as an autonomous person of age. The parents did not
488 Chapter 8

initiate the procedure to become his legal custodians since they were not
instructed to do so, focused more on the daily struggle to make it in life
with an autistic son than on the legal expertise on the case. His legal
nonresponsibility for the act still has to be proven at the court. His lawyer
by legal duty is on vacation and someone else is substituting for her. The
parents don’t know who she is and cannot establish contact. He ended up
in the system during summertime vacation and the system’s solution was
to prolong his stay for two months so that a psychiatric expertise could be
conducted and the mother could testify before the court. The ombuds-
man for disabled persons intervenes in their case. The son is near suici-
dal, sedated, and picked on by other inmates of the prison hospital. In-
stead of the support and rehabilitation by social care institutions, he
ended up in the penal system. Obtained at the journalist’s request, the
court’s responses were bureaucratically idiotic: from the point of view of
the law, the accused is of age and protective custody was applied because
of the possibility of influencing the witnesses, that is, parents of the son
with diagnosed autism. Only after media pressure did the inert court call
the mother to testify about the case (Škaričić 2014).
Bystanders, on the other hand, offer the old story of evil. The conse-
quences may be grave, but need not be—the principle is the same. Evil is
enacted because of some nonintervention based on fear, disinterested-
ness, callousness, hoping that somebody else will do something, and so
on. It is the psychological foliage of selfish rational actors that, contrary to
Chesterton, falls nicely into several banal formulas rendered in our func-
tional languages. Sometimes it’s just popcorn. Cinema. Bombs hit Gaza
Strip as people bring chairs to watch the spectacle from the hill as if it
were some astronomic curiosity, such as the tears of St. Lawrence. The
picture is disseminated by a Danish correspondent in Israel who tweets
how spectators applaud after every hit: “Sderot cinema. Israelis bringing
chairs 2 hilltop in sderot 2 watch latest from Gaza. Clapping when blasts
are heard” (Sørensen 2014). According to the data, more than 160 people
without name were killed by bombs that day. The people who watched
probably didn’t feel anything similar to the crowds of ten thousand roar-
ing, as in the lyrics of Knopfler’s Lights of Taormina or stories about Em-
peror Commodus: the gore is far away and anonymous. Many more
pictures emerge, one involving a couch in American street style. The
retaliation ensued after Hamas was blamed for the murder of three Jew-
ish teenagers. Muhamed Abu Kudair was kidnapped and burned in east-
ern Jerusalem after Ejal Jifrah, Gilad Shat, and Naftali Frenkel were ab-
ducted and killed. Hundreds of Palestinians were arrested in a Brother’s
Keeper action and the Gaza Strip is bombed. It is a morbid cycle of
collective punishment: the boys killed and burned were “my people” in
the words of Petrus the dog-man, only Coetzee’s protagonists did not
have rockets at their disposal.
 Dismantling Sorrow 489

In a bus to Zagreb from the Adriatic Coast, the coarse and intimidat-
ing driver threw out a twelve-year-old girl for not having a valid ticket;
she had mistakenly bought the ticket from another company, despite
multiple checks with the dispatcher, who claimed the ticket was OK. It
happened in the summer of 2015. The girl didn’t have enough cash in her
pockets to buy a new ticket. Although he did not check her ticket upon
embarking, the driver did not want to wait until the arrival point where
her mother would pay, or to the first stop with an ATM. None of the
passengers did anything to stop it. Nobody bought her ticket instead, nor
did they try to collect money as a solidary group, a small co-traveling
community that forms passively in these situations of train and bus
travels. Slavenka Drakulić, a Croatian writer, interpreted the case for the
newspapers. Drakulić is the author of They Would Never Hurt a Fly about
(mostly Serbian) war criminals (tried in The Hague) as ordinary men. She
operates with a similar distinction as Jaspers at the end of this chapter
and the book: guilt is individual while responsibility is collective. Collec-
tives share responsibility for political choice, whether through elections,
active choice, or inaction of passive letting go to the political current.
Drakulić points out that in the latest series of Balkan wars, as in Brown-
ing’s Ordinary Men, crimes were committed by our friends, neighbors,
fathers, co-workers, and fellow citizens.
It seems drastic but the principle at work on the bus, as Drakulić tries
to show, is the same. In the text she reminds readers that Robert Jackson,
chief prosecutor at the Nuremberg Trials, defined evil as lack of empathy.
She doesn’t think that travelers on that Croatia bus line were particularly
evil. On the contrary; but they did fail by committing the evil of inaction,
perhaps of fear of authority that was stronger than their solidarity for a
girl they did not know. If only one person raised his or her voice,
Drakulić claims, the group dynamic would have changed. The choice
was there and passengers chose to ignore the bullying. It was blind fol-
lowing of the rules, without humanity or practical power of judgment,
reminiscent a bit of Arendtian grander-scale interpretive operations. The
whole interpretive framework is familiar to readers of the literature
evoked here (Zimbardo, Browning, Dawes in that line, including the
Arendt and Jaspers duo to whom we return at the very end) and is neatly
applied to the case. Drakulić’s point is that “evil does not exist by itself,
but it can hide even in a series of small, seemingly insignificant deci-
sions.” She frames her verdict in the language of punishment, pointing
out that the choice they made was not preordained in advance: “It is their
punishment, if they are aware of it at all” (Drakulić 2015). The reclama-
tions office said it was the mother’s fault to send a twelve-year-old girl to
travel by herself. The bus management issued a public apology, and the
driver lost his job after the case appeared in the media. The Drivers’
Union representative tried to defend their protégé and blamed manage-
ment policies (Butorac 2015). Drakulić concluded that there is no society
490 Chapter 8

without solidarity. Lack of solidarity as evil? Some commentators blamed

the aunt for not checking with the driver before departure.
And there is, in this world—especially in it—such thing as punish-
ment for being brave, in an exactly opposite situation, when someone
tries to change group dynamics when it is unchangeable, at the cost of his
own life, in a ludic gesture of human dignity that lives as a story for the
generations. A touching heroic narrative is offered by one of the ac-
claimed Croatian journalists, columnists, and writers, Boris Dežulović.
The story is about a not widely known person and its basis is factually
accurate. Tomo Buzov, a Croatian from Dalmatia and a retired officer,
traveled to Podgorica in 1993 during the war in Bosnia and Herzegovina
to visit his son who was traveling from Belgrade to Podgorica, the capital
of Monte Negro. As the train stopped in a small station in Štrpci in the
southeast BiH, Muslims were separated and put in a line that was going
to take them to a liquidation site where they would be killed and their
bodies thrown in the Drina River. Not one of the numerous passengers
reacted. They minded their own business or even supported the action.
Although he had a wife and a son to visit, and could not change any-
thing, Buzov stood up from his seat and shouted: “Wait, people, what are
you doing? Is there law in this country?” (Stanite, ljudi, šta to radite!? Ima li
u ovoj zemlji zakona?). Nothing is changed except that thirty armed men,
continuing with their ethnic cleansing operation, added one more life to
it. Buzov was taken with their victims, tortured, and killed in Prelovo
near Višegrad by the Serbian paramilitary unit The Avengers (Osvetnici).
Fatiha is prayed for the killed Muslims by their compatriots, but not for
Tomo Buzov, a Croat and JNA retired officer traveling to Podgorica for
his humane gesture, a sort of a righteous among nations act, a futile
gesture of one among the khassidey umot ha-olam. Dežulović calls him the
man who could not have kept silent, the one in a thousand on that train
(Dežulović 2014). In 2015 a memorial plaque was erected in his native
Kaštela, near Split, Croatia, commemorating “a man who could not re-
main silent.” If evil is in the silence of the bystanders, is not the good in
the voice, in a perfect altruistic self-sacrifice for others?
I am not necessarily paying respect to Haeckel’s old thesis that onto-
genesis follows phylogenesis—each of us as a being quickly passing
through the eons of biological and social evolution of the species, as a
baby’s heart grows from simple fish-, through reptile- to mammal-like
organ, beating to the mantra that “ontogeny recapitulates phylogeny”—
but as this section nears its end, I want to discuss the theme of banality of
evil from another angle, as one is, after rearranging books on the book-
shelves, suddenly struck with an interesting thought when two seeming-
ly unrelated books end up one near another. Stories of evil and animals
are followed by stories of evil involving young humans. To return to Vai:
his instrumental composition For the Love of God offers another take on
theodicy, highlighted in the music video altering the pictures of destruc-
 Dismantling Sorrow 491

tion and meditation associated with religions. In the end, a modulated

voice claims: “We may be humans, but we’re still animals.” Violence on
different animal farms merits two cases in our hellish lineup. Leprino
Foods from Denver supplies big fast food chains with mozzarella and
other cheese and dairy products that are provided by various farms. On
the Winchester Dairy farm in New Mexico, animals are routinely tor-
tured. Footage shows workers punch and kick animals, throw calves like
bags to trucks, hoist and drag around injured cows with tractors. The
animals are struck by chains and shocked by prods, especially in the
genital area. An unborn dead calf is pulled out of a cow with chains; the
cow also dies later. There is no veterinarian care. Hidden footage made
public produced an outrage. Director of investigations at Mercy for Ani-
mals speaks of “a culture of cruelty and neglect to fester.” The series of
actions to save profit quickly ensues, and a private punishment is first
administered to minimize the damage. Leprino, who “prides itself in
providing an uncompromising commitment to high-quality real cheese,
and the milk must be supplied to us by farmers who share . . . commit-
ment to the highest level of animal health and wellness,” terminates ac-
quisition, the farm is closed down, and animals are “[d]ispersed . . . to
other dairy farms with strong track records in animal welfare within
hours of the video being received” (The Denver Channel 2014). The pro-
letariat from New Mexico gets its share of punishment: they are all fired
and reported to the police. Afterward, they are criminally prosecuted by
the state prosecutor for “the clear violations of New Mexico’s anti-cruelty
laws” (Rice 2015). However, the business may continue as usual in a
bonfire of hypocrisy. An ethnography of the killing floor that I read long
ago strongly suggested that the animal slaughtering business offers one
of best examples of structural violence: the whole industry of meat pro-
duction usually works hidden from the eyes of potentially political con-
sumers who wouldn’t potentially change their choice when confronted
with the systemic cruelty toward animals as a part of the industry. Speed,
efficiency, and callousness induce brutality as normal; an incognito PhD
student, a hidden ethnographer, reports how after a while he did not and
could not bother to care for the animal welfare, and conformed to the
practice of electric prodding of the genitals as the bodily spots where the
animals are most sensitive. The story developed into an acclaimed book
about the slaughtering industry (Pachirat 2011), which is alive and well, a
mass production of suffering and bad food for profit. Violence has found
its agency, punishment was administered by economic sanction, stigma-
tization, and finally criminal prosecution. The business would continue
as usual. The whole story reeks of evil.
In the second case, the negligence of a small entrepreneur replaces the
routine mechanics of the global system. It takes places on an animal farm
near Ivanić Grad in Croatia in Posavina region in spring 2013. The scenes
from this farm cause anger and sorrow because of the purposeless cruelty
492 Chapter 8

and suffering of the animals. Footage shows a mare partly immobilized

and suspended by a tape in front of her rear legs. She is attacked by
starved-out dogs, two Japanese Tosa, and eaten alive while her front part
is lying on the ground. The torture does not come from the system of
economic slaughter or occasional sadism at its capillary levels. It comes
from a prison without guards, not from industry but from neglect.
Starved-out animals with prominent ribs do the job to survive. The own-
er, another former war hero and one of the leaders of the defense of
Vukovar, offers a rant of conspiracy theories, ad hominem attacks, feeble
distortions of events, and unconvincing excuses. He says he is willing to
crucify himself and turn the cross upside-down if necessary but that he
will keep telling the truth. Branko Borković’s war nickname was the
Young Hawk, his farm was in the media called “The Farm of Horror”
(Kukec and Korljan 2013). The neighbors said that he rarely fed the ani-
mals and kept them because of the state subventions for certain autoch-
thonous breeds. The court decided he was not guilty on the count of the
article 205 of the then Croatian penal law providing penalties for the
torture of animals, while the animal rights NGOs protested (Korljan
2014). These animals were not killed for food or tortured or hunted for
sport, or even used in religious rituals, such as the massive slaughter at
the Gandimai temple in Nepal to please the goddess of power, but also to
use the remnants for human nutritional needs. Suffering is instead the
consequence of arrogant and reckless acts or simple malice with no pur-
pose. There is sorrow in that.
An unlikely revolution is suggested in a digression appropriate just
about here between animals and kids, followed by some hard questions
posed long ago by the righteous La Boétie. Can we, after Orwell, think
about human politics through animals rebelling, of politics curing evil?
There are literal small-scale lessons against the grain. A lion and a struck-
down buffalo somewhere in Africa are filmed by cameramen on a safari
(Barcroft TV 2013). The buffalo fights back but succumbs, about to get
killed and eaten. Two buffalos come from the herd of the animals that
usually run and scatter, leaving singular victims to the claws of lions. The
big one runs, attacks the lion, and tosses him in the air. The lions escape.
Even if there is a YouTube subgenre of safari footage of buffalos killing
lions, the question is still actual: Why don’t buffalos usually act in such a
manner? The image of lions is one of proverbial bad guys, killing cubs to
get laid. What would the poor things eat if buffalo bystanders would
come to be more organized and altruistic? Would it be good? Although
such question provided by the daily banalities of animal documentaries
narrated by a pompous voice may appear stupid, deep, and funny at the
same time, nature goes on. And it goes on in many ways, mixing with
politics, war, and economy. If not the babies, kids can sometimes make us
think about evil by doing something that by definition they should be
incapable of. So it becomes structural. Child warriors abhor the grown-up
 Dismantling Sorrow 493

civilized people in their routine. They are especially brutal, thus is the
stereotype of them with the fat grain of truth in it. The lack of internal-
ized discipline, normalcy, responsibility, constraints, and the reality feel-
ing—it sounds like a quite explosive causal cocktail. They are both brutal
and expandable, useful for the machine that puts their poverty, childish
energy, and immature disbalance into feudal efforts. Evil before respon-
sibility. Some other’s evil. Who made the child mobilizing militia war-
lords? Who made the people who support them?
Instead of getting lost in answering these questions, some easy and
some potentially spiraling into never-ending stories of radical skepticism,
we can take a local case, exemplifying the general work of nature, follow-
ing Houellebecq, but not in the sadistic chambers of the boarding school
but out in the open, in the heat of the game as a ritualized conflict, or
amid its later expressions of retributive sentiments. A referee dies as a
consequence of an attack after a soccer game in 2012. Contrary to the
sport against drugs, sport against racism, sport against violence, and sim-
ilar mantras, those phenomena are not easily dissociated from the sport
terrains, metaphorically describable as fighting arenas. The case rela-
tivizes the Hobsbawm’s en passant observation about the difference be-
tween civilized society and failed state where kids express their aggres-
siveness in an institutionalized sport versus civil war, where they wave
around AK-47s. Testosterone and group dynamics of some can make the
playing field dangerous even in contemporary Netherlands. Several
young players in a soccer game in Amsterdam and one father attack the
line judge, a volunteer in his forties, because they are unsatisfied with his
decisions. His is beaten, including a kick in the head while he is lying on
the ground. His son is also a player and witnesses the event, playing for
the opposing team to the one of the attackers. The line judge, Richard
Nieuwenhuizen, dies after the game of Nieuwe Sloten, the guest team
from Amsterdam and SC Buitenboys, the home time from Almere for
which the boy plays. A commemorative silent march is held at Almere.
The minister of health, welfare, and sport, Edith Schippers, expresses
shock as well as the then FIFA president Sepp Blatter, framing it as a
social problem. The Dutch football association issues a statement warn-
ing that statistics show that most of the incidents happen in young
players’ matches, highlighting the turbulence of the age. I also think of
the low level of professionalism and control in lower leagues and youth
matches, following the metaphor from the earlier chapter. Since most of
the attackers were of Moroccan descent, quite a common thing at the
Nieuw-West of Amsterdam, especially in the milieu of youth football,
Geert Wilders introduced ethnic and cultural cleavage into the issue. The
attackers were sentenced in 2013 for manslaughter, forensic expertise as-
sociating the beating with death; the father got six years’ imprisonment
and the underage players mostly got two years of youth detention (Mo-
hamed 2013).
494 Chapter 8

A sexually deprived punisher, an asocial and psychologically strained

boy in his early twenties, and a confessed virgin who finds this fact
fatally important (unlike Havelock Ellis, for example) unleashed redemp-
tion on the world. The Isla Vista killings of 2014 involved Elliot Rodger,
son of a British photographer and filmmaker, coming of age in an affluent
West Coast household, who kills six students of the University of Califor-
nia–Santa Barbara in a stabbing and shooting spree, and wounds another
fourteen before killing himself in the course of a showdown with police
in his black BMW. Before the thanatical carnage, he published a sincere
autobiographical manifesto with a non-self-flattering title My Twisted
World, starting with the sentence, “Humanity . . . All of my suffering on
this world has been at the hands of humanity, particularly women” (Rod-
ger 2014), and culminating in his proclamation of war against women
and expressing blunt racism, not hard to associate with his sexual frustra-
tion and mixed British-Chinese descent, highlighting “the British aristoc-
racy” component of it. 8 In his last video, Elliot Rodger’s Retribution, he
importunately employs the language of punishment, announcing a re-
tributive action that will take a diffuse head toll to redeem his sexual
frustration, with the “hottest sorority house” as his primary, let’s say
tactical target, in a war against humanity, especially women: “I’m the
perfect guy and yet you throw yourselves at all these obnoxious men
instead of me, the supreme gentleman. I will punish all of you for it”
(KRON 4 2014). The sinister laugh ensues like in a cheap horror movie
that was ironically true. Rodger indeed rang at the Alpha Phi sorority
house, but no one opened the door so he started shooting around. His
explicitly stated ambition was to prove himself as a “true alpha male.”
His biography, on the other hand, was one of a bullied kid, of alienation,
psychiatric therapy, extreme loneliness, no friends, and no girlfriends.
His father distances himself from his dead son in a strange interview,
citing him as a hidden monster (takingBackWhatsMine 2014).
It is a story of incidents and humiliations, aggressiveness that builds
against the social world one does not feel at home in. Throwing coffee
and juice at couples and girls, humiliated at the party. Punishing of the
world for one’s own faults. New Age regurgitates Zen wisdom into new
metaphors: One Minute Wisdom by an Indian Jesuit Anthony de Mello has
a point that it is easier to put slippers on than to cover the whole world
with tapestry. The son of Peter Rodger didn’t think so and perhaps
wasn’t in position to think, feel, and do otherwise. He offered an anti-
theodicy, a punishment of the world that included punishment of him-
self:
It was all fueled by my wish to punish everyone who is sexually active,
because I concluded that it wasn’t fair that other people were able to
experience sex while I have been denied it all my life. . . . There was no
point. I believed that I would either fulfill my dream of becoming
 Dismantling Sorrow 495

wealthy at a young age in order to be worthy enough to attract beauti-

ful women, or exact my revenge upon the world and die in the process
to escape punishment. (Rodger 2014)
And the last sentence of his confession, the chilling sentence, announcing
the punishment of everyone, appears as a negative Christian theology of
ultimate punishment instead of the redemption of sins. It tells a story of
the misery of the world and its subjects, followed by the deeds that exhib-
it literal true worth of one of them, nothing more and nothing less:
Humanity struck at me first by condemning me to experience so much
suffering. I didn’t ask for this. I didn’t want this. I didn’t start this
war. . . . I wasn’t the one who struck first. . . . But I will finish it by
striking back. I will punish everyone. And it will be beautiful. Finally, at
long last, I can show the world my true worth. 9
I wrap up the section with a traffic-concerned footnote, not a grand-
scale knives-and-firearms carnage, but one where recklessness brings fa-
talities with a bizarre judicial aftermath. Another young man, a boy,
drives drunk and four die as a consequence of his negligence in 2013. He
“kills” four people, as the media, not too sensitive over the problems of
scholastics of agency, have it. Stolen alcohol from Wal-Mart, speeding,
and manslaughter when driving under influence, both of alcohol and
benzodiazepine. He is put on probation “because the judge—with no
apparent irony—agreed with the boy’s defense that he was a victim of
‘affluenza’ because his parents taught him wealth and privilege shield
consequences” (Bluestone 2013). Is the story of Ethan Couch, a sixteen-
year-old teen at the time of the incident, a joke? Not for nine more injured
and one of his passengers with brain damage. The article continues, offer-
ing an extreme version of the responsibility shifting outside of the agent:
“Couch’s defense was that he was a victim of his parents’ wealth and
privilege; in that he never had to face consequences.” He was not pun-
ished. He had everything at hand and had become “emotionally flat.” As
a consequence, there is no chastising the deed but the healing of the doer.
He goes to treatment.
It is a joke, indeed, an extreme that through the possible shows the
real but also exhibits a consequent reasoning of structuralism. The vio-
lence is not a product of deprivation but of a psychological bore born out
of overpossesion. Ethan Couch is not exactly Alex de Large, but not far
away either, as far as this case is concerned. Punishment is retracted since
the subject’s liability is questionable. It is the story of a spoiled kid and
bad parents, as it could be framed in more conservative circles. It is truth
of violence and punishment, and common law: deprivation and overpos-
sesion, obstacles and vast void, leading to the same consequence. Should
Ethan Couch suffer retribution for his parent’s sins? Should the ghetto
kids, structured into misdeeds? Is theodicy found in the lucrative civil
suits? The mantra of “wealth and privilege” haunts the case as well as the
496 Chapter 8

skeptical downplaying accentuating the long probation and general le-

niency in youth criminal justice, on closer inspection moving the judg-
ment away from the eccentricities of defense discourse in the style of the
Man Who Wasn’t There, the Coen brothers’ neonoir from the early 2000s.
Paid experts and good attorneys: is it a picture of a biased judiciary?
Economy versus community justice? This is the probing of the extremes,
not a dissection of the institutions of the justice system in the United
States. The extreme discourse has been fired away, as have been others. 10
This one, for our purposes, may finally show that there is a feeling of
catch-22 in theodicy. It is a genre of perfect reasoning with a practical
flaw: nobody is responsible but only some are punished.
Is that evil?

DOES EVIL HAVE ROOTS? SEVERAL MONKEYS AND MORALISTS,

ANGELS AND DINOSAURS

Situation, structure, interest, instinct, system, power, psychology,

psychoanalysis, distortions of discourse, pressure of norms, economy
and nurture, rich and the poor, fear, panic, neglect, addiction, war, mis-
perception, and so on. With these and other categories, and their combi-
nations, it is easy to show how for every single one of these cases—
however brutal and shocking in their presentation, and rightfully appeal-
ing to emotions that move compassionate human beings to action—an
explanation can be offered of causes leading to a violent outcome. I won’t
do the exercise. I’ll leave it to the reader’s pastime. Suffice it to say that
even in these last cases, the feeling of shock and outrage may be replaced
by causal biographic narratives and contextual explanations of actions
and stories told. Growing alienation that builds a parallel world, a shock-
ing defense deflated to mundane routine of penal politics and policy. A
biased system, the working of a bureaucracy, banality of evil.
The choice of cases made by an author is, of course, not exempt from
this. Why did I choose them? Why did exactly those catch my attention
and provoke moral disgust? Being a young father at the time, of two
daughters, the cases involving babies and sexual violence against chil-
dren look more horrible to me. 11 Being a tame middle-class intellectual,
someone who has never profited by physical violence, the whole idea of
physical violence becomes a problem for me. And so on. Thus I am writ-
ing on violence, punishment, and dismantling sorrow. If I were medieval
Occitan troubadour Bertran de Born, the co-seigneur of Hautefort, I
might be composing belligerent sirventes praising the pleasures of war
and slaughter of the enemies in the fray. One’s sorrow is another man’s
joy, depending on the time, place, and the person. However, the point of
this section is much more modest than to find a transeopchal ultimate
value, which I doubt would make much sense in a history that is still
 Dismantling Sorrow 497

moving. The point of this section is simply to review the discourses that
shed an alternative perspective on the problem of evil before the presen-
tation of its rationalizations from the point of a postulated harmonic
whole.
All that we have said on violence and punishment is but a drop in an
older and undulating ocean of discourse on this matter. A simple anthro-
pological observation that builds discursively bottom-up may illustrate
this. Those who commit violence often rationalize it, sometimes as pun-
ishment. It is a perspective already offered for groups and whole societies
in games of punishment, which are often not highly rational in the sense
of policies forwarded by an enlightened and legitimate lawgiver. In an
analysis by Polaschek, Cakvert, and Gannon (2009), four stubborn, al-
most perennial patterns emerge that exemplify the claim. Some of those
who are violent tend to produce, in their discourse and practice, the old
law of the jungle in social interaction (beat or be beaten)—for example,
gang members—some evoke the loss of control, while others offer a call
of nature as legitimization (violence is normal): what is the big moralistic
fuss, they ask, about something so old and widespread? Finally, in the
cultural attire of American West, some will quote the saying that every
man is a sheriff in his heart and offer a vigilante justification of rough
justice. Every man is an agent of punishment since “I am the law” works
as a discourse of violence and punishment, a self-interpellation of wide-
spread agents of justice. To append the final part of the fifth chapter and
the story of religions guiding violence and punishment, the analogue in
another tradition of moral reasoning that is both religious and legal is
offered by a Talmudic concept warranting rodef or killing in specific situa-
tions: “The law of the pursuer, or din rodef, permitted a bystander to kill
the aggressor in order to save the innocent victim. It was one of the few
circumstances in which the Talmud allowed extrajudicial killing” (Eph-
ron 2015, 94). A quite liberal interpretation of this concept lead a young
hothead to kill Yitzak Rabin, to kill the king, as the recent book had it,
putting a self-authorized agent of punishment against the too peaceful a
sovereign for his taste. The point of the sheriff in the heart and action
approach is ironic: the hell of the nonintervening bystanders may easily
turn into a hell of interpretation, which is explored as the root of all evil
by some discourses in this chapter.
Secondly, philosophers, not necessarily keeping the tidy delineation
between myth, history, philosophy, and fiction, offer a narrative about
the epochal shift of paradigms. A fourfold ontology of evil (Rivas 2005) is
an excellent example in this exercise in far-reaching excavations in the
history of philosophy, culture, and thought. Unlike Christians, for whom
good and evil are very generally speaking not imposed but chosen, for
Greeks there is no such moralism if judged by their myths. Good and evil
are something that happens in the order of the cosmos. Rivas uses the
example of Oedipus, which exemplifies a recurring idea of Greek mythol-
498 Chapter 8

ogy—how, despite all the intended actions, fate turns its back on the
actors and their intentions. Oedipus suffers evil not because he is a bad,
vicious, or cowardly character, but because of his fate. He didn’t know he
killed his father and that his wife was his mother. The place of evil as a
puppet of fate changes in Christianity, shaping Western civilization that
grew on the ruins of Rome. Rivas discusses the Christian paradigm
through the mysticism of a nonmystic; if we follow Augustine, evil is
something tempting that has to be subdued, a part of the trials of this
world where one defeats evil by giving oneself unto God, although the
struggle continues after the metanoia. (Rivas seems to omit this point
which strikes at least this reader of Augustine quite sharply.)
Romantic ontology, on the other hand, awakening as a consequence of
Enlightenment rationality and breaking from tradition at least in the his-
tory of ideas, is something else. Evil is inebriating, in a way a beautiful
force that gets people carried away in the context of normative voids of
Enlightenment: “The romantic ontology of evil sprang from what can be
called the very touchstone of modern science, since Newton on: the fact
that rational determination of nature does not match any human end or
intention” (Rivas 2005, 337). There is a nice reading of Poe done by Rivas
here—a key author he uses to expound on evil as a seducing force,
stronger than one’s will: The Telltale Heart, The Black Cat, and The Imp of the
Perverse show inner psychology of evil, while A Descent into the Maelstrom
offers symbolic figures of destructiveness of nature. In Rivas’s presenta-
tion, romanticism ultimately leads to a “purely imaginative conception of
evil by revealing that the same facts that could be interpreted as the most
awful transgressions are also explainable as simple everyday life inci-
dents or unmotivated deeds due to vulgar coincidences” (Rivas 2005,
361). Dionysianism is, finally, a shorthand for Friedrich Nietzsche: as we
go beyond good and evil, there is no right or wrong except in the sense of
a particular moralistic perspective. Ethics reveals itself as a mere anthro-
pomorphism of forces, as Rivas reminds us. Greek cosmology is replaced
by Christian theology, and in the next paradigm with psychology in ro-
manticism. In Dionysian perspective, however, universal rationality is
discarded together with the identity of the subject. It is, in terms of the
history of philosophy, an old juxtaposition of Nietzsche (and Foucault)
against Hegel. And Rivas is not impressed by it, seeing in it some kind of
contradictory metaphysics (see Rivas 2005, 351, 357). With an interpretive
lip service to Nietzschean massively interpreted and controversial motif
of eternal recurrence, evil, in this framework is, “the difference between a
drive and its ideal representation, a difference that is transformed, time
and time again, thanks to the inexhaustible possibilities involved in the
eternal recurrence of the same” (Rivas 2005, 351).
In this far-reaching interpretation, paradigms of evil are ontological in
a normative sense of constitutive anthropology, since they define our
humanity. We are made into humans by the problem of evil: “On the
 Dismantling Sorrow 499

whole, these four possibilities define what evil is and, still more, what
man can be. Whether felt as some fatal force, free option, ominous im-
pulse, or nature to be created, evil leads to the most intense experience of
humanity, which stops being an abstract essence for the individual and
changes into something that must be generated by will. Man is not hu-
man because of his organic condition, but because he faces evil” (Rivas
2005, 324).
If we were to translate this into less pretentious words, vaguely as
something bad and cruel, involving suffering and destruction, phenome-
na that fall within that normative category were fatalistically accepted,
transcended, aesthetically accepted, or abstracted away as a cultural
trick. Sophocles wrote about destiny, Augustine tried to transcend it with
the help of God, Baudelaire sort of loved it—Goya’s nightmare of fetuses
from The Beacons, “roasted in the midst of witches’ sabbaths” and evil
tempting the subject as the old women “tightening their hose to tempt the
demons” 12—while Nietzsche was certainly moved by the problem but
decided to negate it, putting evil into perspective of a specific morals of
the Judaist clerics and Christianity that followed, as a scam of the weak,
sickness, and decadence (iconoclastic as far as it gets if we exclude de
Sade: the ironically moralistic title The Antichrist kind of sums it up).
The review of Rivas sets the terrain for several interpretations to be
pursued in this section. Although the object of criminology is generally
defined by the positivism of state laws, negotiated in secular politics—
and every bully has a banal semantic rationalization of violent actions
with a grain of truth in it and some evolutionary baggage—evil, mostly
associated with human cruelty to other humans, and suffering that goes
beyond the regular conditio humana with joys and sorrows of birth and
death, health and disease, moves in and out of the picture. When it is
fixed as a name for the consequence, agency, responsibility, and policy, it
tends to move to action that is sometimes itself counterlabeled as evil.
After an interpellation by the means of the film about three monkeys, the
various perspectives are shortly presented and interpreted. The birth of
grace from chaos, introducing morality against evil, forks: on the one
hand, into its ignoring, or the transposition to the issues of identity or
perspective; on the other, in its religious or secular acceptance and analy-
sis, and causal reasoning chasing its roots and surfaces, handling it with
various implicit policy prescriptions. One tradition spans at least from
Protagoras to Nietzsche who recycled the old theme of moral relativism
familiar to Greeks, on whom he was an expert, while the second accepts
most general civilizational norms and wages ideological and analytical
battles concerning human nature and politics, as in our chapter on fiction.
These strategies open space for a wider quest for meaning, posing the
question: If sorrow can be explained, does it mean it is by the virtue of
explanation dismantled as well?
500 Chapter 8

Three wise monkeys pose the problem of evil. They are blocking their
eyes, ears, and mouth. They have perhaps arrived at a Japanese ur-relie-
vo from the Confucian teaching of The Analects, reasonably directed
against bad company, where one cannot help but to see and hear bad
things and, consequentially, speak and do them. The macaques Mizaru,
Kikazaru, and Iwazaru are an allegorical representation of the “see no
evil, hear no evil, speak no evil” principle. For the West, this is usually a
sign of morally reprehensible inaction, a rationalization of cowardice,
such as in the case of neighbors who did not hear brutal celinesque
sounds of family violence from a nearby flat, as in Susan Vega’s late
1980s single Luca, or in the corrupt cynicism the pun of the original Planet
of the Apes where the court of three assessors appears just as the iconic
three monkeys, unjustly judging Charlton Heston (without a rifle, luckily
for the monkeys). There is evil but we choose not to see it. It means we
are morally bad as we help the reproduction of injustice. For the East—in
Taoism in its primordial form, or farthest and probably most beautiful in
Buddhist parables—it is exactly the opposite: assuming the pose to judge
and meddling in the course of affairs, creates evil. Here, it is not a turning
of a blind eye that helps evil but searching for it that makes it appear. Or
even worse: to think one sees it and then try to conquer it politically in
earthly matters is only to produce it; as we have seen in the fifth chapter,
it is hard for a Buddhist to be king. Evil is in the eye of the beholder not
being aware of its moralistic prejudices. Of course, one’s fear, as in Ryo-
nosuke Akutagawa’s stories, may create later heroes, psychologically
compensating for the early trauma, or more exactly redeeming it with a
later career of bravery, but the motivation is not the object reprehensible
in the Protestant worldview. A Protestant coward is moral if he does the
right thing, even if quivering like a twig, but for Buddhist motivation is
the key: Gasan may perform a public ceremony but if he sweats that
means he is not enlightened yet. Some Lutheran aporias aside here, what-
ever comes of a clear soul is not wrong: a master may drink and sleep in
the afternoon, while the one who is overly strict may simply be frustrat-
ed. If there is good and evil, they reside in the subject unsatisfied with his
aesthetic of the self. Tranquility and bliss, or a genuine tempest, will
produce good results.
Turkey is, as we have hinted, in between—a country of politically
complex heritage including both the Islamic Ottoman Empire and
Atatürk’s secular nationalism, trying to build Turkey into one of the Eu-
ropean and world powers. It is there, between East and West, or between
several Easts and several Wests, where the action of the movie Uc May-
mun—the three monkeys, literally—takes place. In this visually impres-
sive Tarkovskyan cinematic feature, a family is haunted by a tragedy in
their past: the death of a child, who emerges in touching scenes of medi-
tative reminiscence. The family drifts into a circle of vice as its members
do not speak to each other. Husband falsely pleads guilty and accepts a
 Dismantling Sorrow 501

prison term in exchange for money in a hit-and-run case involving his

boss, a businessman with political ambitions ironically not becoming an
elected official in spite of the cover-up. The son, an unsuccessful lethargic
student living with his parents, wants to buy the car. The wife, his moth-
er, is as an emissary for money, starting an affair with the businessman
after a scene of dramatic high-heel dangling and throwing it into air in
front of her vomiting son, who then kills the businessman in an Oedipal
mini-drama, where everything is known but unseen, such as the hit pe-
destrian, unheard as the sounds of making love from the bedroom, and
unspoken, such as in the infidelity of the spouses. Finally, everything is
scapegoated farther in a karmic conveyor belt: the released father makes
a proposition that cannot be refused to the poor neighbor, who would
claim the murder his son has committed. In the end, the family is pre-
served. The simple chain of events superficially triggered from the out-
side by an immoral power-holder is transferred away by the three mon-
keys of a broken nuclear family: husband, wife, and son. One interpreta-
tion is that they had the potential to do evil and that they have done it,
lying, being greedy, cheating, committing murder, and transferring it
further, doing nothing better than the mephisto politician. But that is our
judgment. The other is that it is a chain of events and actions with things
happening to them more than that they are to be seen as actively done,
the lost child and the pain lurking behind the characters that are nor
particularly vile but normal. They did not see, hear, and say evil. Evil
might have not been there, only a murky nirvana and beautiful melan-
choly near the Bosporus Strait dividing East and West, Europe and Asia.
This ambiguity is triggered by the contemplative style with long shots
instead of barrage of words in the style of Gilmore Girls, and any more
elaboration would either build up the pathetic even more or dispel the
ambiguity I want to keep here after Rivas, to further set the terrain for
this section’s exploration of the problem of evil. It also highlights another
thing, strongly suggesting the chaotic aspect underpinning the situations
where evil is detected or discarded. In an old scholastic ontological proof
of God’s existence, which from the postulation of the existence of order
deduces the existent subjectivity of a supreme ordinator, a watchmaker
designing a watch to use the familiar metaphor, the prior question of
order is silenced. 13 This contingentia mundi is sometimes seen as a breed-
ing ground for a Kantian imposition of conceptual schemes or a place of
more fixed purposes on the track of Aristotelian Thomism, but many of
those “who get trampled down on the hurting grounds” have good rea-
sons to think otherwise, that there is no order at all but perhaps only a
partly structured, morally disinterested evolving chaos. 14 So the opposite
could be more accurate: there is no order, and then, a bit more logically
since the inference is negative, no originator who made it.
From this follows the first distinction in this exposition: the one be-
tween the acceptance of grace and its affirmation, and its rejection as a
502 Chapter 8

pathetic illusion in a world of behavioral and cultural pluralism. The

already interpreted Book of Jonah may illustrate this. The poor Ninivites
do not share Jonah’s perspective, which is a bit passive, him not being
very eager to save the sinful population of the said city to which some
dicing and God’s whale of destiny carries him. Jonah is a “minor proph-
et” in one of the rare Old Testament instances where the Almighty shows
his generosity, not for the dried-up bush making shade for the prophet
but for hundreds of thousands not knowing their right from their left. A
Jonah perspective thus comes as a bit insular, and human righteousness
as stingy—”petty-souled,” if one would literally translate the Croatian
term sitnodušan that goes much wider than the more cognitive “narrow-
minded”—compared to God’s mercy and grace. Jonah rejects grace from
himself and others but is, sort of, forced into it together with others—or
more exactly, demonstrated into it. The presupposition, the logical frame-
work that makes the story possible, is the cultural valuation of some
practices as evil. Only then is the space for grace opened logically and
practically to give mercy and a second chance instead of punishment.
That is the acceptance of grace in another discourse offered by an ambi-
tious film not necessarily following the idea as it is expressed in a specific
religious tradition positing “a superior decree which dispenses grace and
circumstance in accordance with God’s supreme wisdom” (Leibniz 2009,
61–62).
Terrence Malick, an American existential romantic and the author of
beautiful melancholic films such as Days of Heaven and The New World,
also offered a theodicy sparkled with some Freudian stuff in The Tree of
Life, which appropriately begins with the Book of Job, expectedly more
important for us in this chapter—the God’s whirlwind speech we tackle
later—and involves a controversial dinosaur scene. If we bracket the
evaluation that computer-animated dinosaurs are at odds with his usual
aesthetics and the fact that the scene is on several levels at odds with the
intricacies of serious paleobiology and somehow digest it altogether, it is
a symbolic piece of prehistoric action that most likely represents the fol-
lowing poetic statement from the scenario: “Silent as a shadow, con-
sciousness has slipped into the world” (Malick, quoted in Wickman
2012). For an average Jurassic Park viewer, something similar to a raptor
instinctively clutches the head of a duck-beaked herbivore that feebly
moves his limbs as pinned down, already lying in his probable death bed
on the river shore. The predator presses again, retreats its clutch, touches
the head once more, and leaves, perhaps choosing grace for a moment
instead of nature, as the initial distinction forks the ways of being in the
world. 15
Thus, unlike in Tennessee Williams’s play where nature does not care
for human sensitivity and is at odds with morality, here it gives the very
birth to it, as a sort of coexistent spinoff: nature and grace, evil and good,
as the two ways of being. And it needn’t be theistic, like in Balzac’s take
 Dismantling Sorrow 503

on the temptation of Saint Anthony where “in the disc of the sun itself,
shines the face of Jesus Christ” (Flaubert 2014, 156). Devilish imanentist
solutions are also possible, in line with a Spinozistic undercurrent of this
chapter where it is God or nature, and blessedness (beatitudo) appears as a
lasting spiritual contentment: “the more the mind enjoys this divine love
or blessedness, the more it understands” (Spinoza 2002, 382). If grace can
be deistic, than that’s roughly it. In any case, I first shortly explore the
rejection of grace before coming down to the usual modes of its accep-
tance, both the ideas of evil and its moral counteractions in a sort of
Manichean play of roles. The opposite of that is the questioning of the
very idea, its specifics and often opposed operationalizations. That is
altogether a cultural construction, an illusion that suppresses the older
Dionysian paradigm without suppressing it. The moral paradox is that
relativism supports chaos. “Evil is socially enacted and constructed,”
writes Baumeister (2001, 375). Of course, this is a base-level statement of
social science dealing with power, agency, and cruelty, but it has philo-
sophical overtones. Taken out of context, it might well be a Nietzschean
statement.
As Nietzsche excitedly writes on a postcard to Overbeck from Sils
Maria, a small village in Switzerland, where he spent several summers
searching for clear skies, “I am utterly amazed, utterly enchanted. I have
a precursor, and what a precursor!” Then still a phrase of a conceited
fallen classical philologist who posthumously rose to the flattering title of
the “last philosopher,” or at least one of them (Miller 1994; 2012), pointed
to a soul mate, another outcast to whom Nietzsche instinctively turned in
his late thirties. Not only that timid Spinoza, as we have seen, made
“knowledge the most powerful affect” but in this “most unusual and
loneliest thinker” Nietzsche found a perfect parallel of his own efforts,
pointing out to the “five main points of his doctrine”: “he denies the
freedom of the will, teleology, the moral world order, the unegoistic, and
evil” (Nietzsche 1988b, 92). Despite all the differences, Nietzsche was not
alone anymore as the evil disappeared, together with human freedom,
morality, and purpose (see also Spinoza 2002, 3; Foucault 2011, 28).
For Nietzsche, morality is an ontological lie. Nietzsche gives no mercy
in an aphorism from Beyond Good and Evil offering a programmatic title
for the paradigm Rivas interprets: “There are no moral phenomena at all,
only a moral interpretation of phenomena” (Nietzsche 2003, 96). In a
latter paragraph, he speaks of the predators like Cesare Borgia: there is
no inner morbidity in them or hell; these are projections of specific value
systems, imposed by the moralists on the matter. So it is not that evil is
the problem but those who posit it as a problem have a problem, plagued
with soft-heartedness and the morality of the weak. To hate Cesare Bor-
gia is as senselessness as to hate the tropics, to cry over cruelty as evil is
to misunderstand nature. If I read Nietzsche correctly, the inner warrior
spawns self-contempt over moderate life and culture that produces such
504 Chapter 8

problems. Did he see it all turning around, back to the warriors, recurring
again, hated or loved? Needless to say (Foucault also saw it very well),
the statements themselves offer self-defeating moralism, replacing one
system with another, “the hatred for the jungle and the tropics” (Nietzs-
che 2003, 119), with implicit and farcical affirmation of carnage, only
without material basis in the reproduction of life, as Marxists might have
it.
Of course, this is nothing new. Protagoras, an old sophist and an
outcast agnostic, stated the same but with a bit less angst and with more
serenity if one can read in the tone the simple pictures emerging from
Diogenes Laërtius’s philosophers’ portraits. The famous homo mensura
statement that human is measure of all things is, to be sure, not a state-
ment of general ontological relativism but one having to do, first of all,
with the subject matter of social sciences, ethics, and humanities, and
perhaps some others, but not with physics and mathematics. Man to be
the measure of all things? It was not to say that two plus two equals five
if you want it to be that way, but simply to state a radical ethical relati-
vism, since those things that they are and those that are not, including
seeing things as evil or not, are chremata not onta, human matters, the
ones that Aristotle dealt with in his works on ethics and politics. The
consequence of this ethical relativism in Aristophanes’s Clouds is also
well known, leading polity into moral chaos and autodestruction, but one
might argue that one thing is a philosophical reflection and the other a
practical consequence of destroying one cultural system, which might
only prove the point.
A methodological gun hanging from the wall in the first act has to be
fired in the last one with something substantial at the core of these issues
of sensitivity to evil. This kind of nihilism was after all quite present as
the problem in the French Renaissance as presented in Montaigne, who at
least exoterically found the answer in his faith. To begin with, the Essays
contain almost a casual sentence that sheds light on the babies’ and kids’
cases that I overrepresented in my own skeptical probing. The serendipi-
tous story goes like this. Sitting in a coffeehouse reading, I found myself
inadvertently listening to a group of high school students repeating flat-
ly, as from a phonebook, some précis from the history of Weltliteratur. I
overheard them say that Leibniz called this one the best of all possible
worlds before they quickly moved on. At the same time I was incidental-
ly skimming through that fat book and the following line caught my eye:
mais j’en ai perdu en nourrice, deux ou trois, sinon sans regrets, au moins sans
fâcherie: “I have lost two or three (but while they were still nursing), if not
without grief, at least without repining.” 16 Montaigne speaks of his chil-
dren. The shock is exactly in the detail of not knowing exactly how many:
Two? Or three? 17 A bit later, the kids were complaining with nasal voices
about how they are learning the things they don’t understand, including
 Dismantling Sorrow 505

Croatian baroque canzonets and at least one of them decided to play

truant in face of a possible oral exam.
On my part, I was left sitting with Montaigne and thought a bit more
about the sentence, which reminded me of the end of Hemingway’s Fare-
well to Arms where the stillborn baby is observed without emotions, as a
dead rabbit. It was strange because Montaigne was obviously caught by
the slow process of the civilizing of habitus of the higher classes, as de-
scribed by Elias. Moreover, he struck the reader as a pretty sensitive soul
for his time and class, abhorred by any unnecessary cruelty toward hu-
mans or animals. For Montaigne, “even in justice, all that goes beyond
plain death” seemed as “pure cruelty,” adding a bit of religious argument
there because the tormented and desperate souls killed in torture are not
sent “away in a good state” (Montaigne 2003, 381). Theodicy was lurking
all around in Montaigne, I felt, but which one exactly? The insensitive do
not need anything by definition and they can live in a natural ataraxia
without justification of God, while the sensitive need such consolation,
since they can’t stand cruelty. Montaigne seemed to be both at the same
time, a classic who did not like to drink but saw drunken Socrates as the
most virtuous of all.
Generally, the tone of Montaigne’s reflections renders the sentence
less shocking among the myriad of examples he gives from history and
experience. The philosophical context is one of a Socratic philosophy
defying death as a decadent existential fear, a result of the lack of real
knowledge. Furthermore, the statement can hardly be a sign of practical
parental indifference coming from a person who was a successful child
experiment himself, consoling mothers of ungrateful children and, even
if a bit distanced, professing a discourse of paternal friendship instead of
authoritarian education (Montaigne 2003, 337–56; Sclafert 1951, 258–61;
see also Mount 1984, 117–19). More specifically, the statement is given in
the context of the fourteenth essay of the first book following the (Epicte-
tus’s) idea that good and evil are but a matter of opinion, not inherent to
things as they are. Acceptance of this by a stoical temperament unlike the
one of Nietzsche, pathetic and flamboyant, goes with a simple tone of a
confession. It is a personal detail among examples of defying death, pain,
and poverty, choosing the hanging instead of marriage with a lame per-
son, foxes gnawing the bellies of Spartan boys, willing cuckolds, austere
popes, and much more in the mixed salad of myth, anecdote, and experi-
ence that with Montaigne’s erudition somehow convinces the reader that
he has a point. From him, life is a trial transforming pain into a test for the
stoically minded, which does not surprise so much when coming from a
person suffering from kidney stones, preferring to be hit by a sword in a
battle than by the sixteenth-century chirurgical scalpel. It is a theodicy of
evil becoming good, at least for the stoic. On the surface it may be a
highly religious stoicism: whatever the version, the gist of the most fa-
mous essay gives primacy to God’s grace before the agency of man, who
506 Chapter 8

rises “for our Christian faith, not for his stoical virtue” (Montaigne 2003,
556). In another essay, seemingly about a case of Siamese twins (with a
“double body and . . . several limbs, connected with a single head”),
Montaigne postulates God’s “infinite wisdom” from which “proceeds
nothing but that is good and ordinary and regular” even if the bigger
picture isn’t accessible to the human observers shocked by an enfant mon-
streux (Montaigne 2003, 654). However, the feeling is, when one descends
from this meta-language to the analysis of concrete examples, that the
clear world of Platonic ideas and Manichean distinctions has lost sense.
After all, Montaigne speaks of a melancholic humor as his genre (Mon-
taigne 2001, 337). Even if religious, a skeptic cannot but ironize his writ-
ing, which here exemplifies relativity of good and evil, even if put in the
wider frame of unconditional belief in the higher good of it all.
Finally, on a bit lesser scale than the crumbling downfall of a political
community, and with loosely Marxist overtones where ideological ex-
pressions follow interests and ways of reproduction of life or technolo-
gies, I want to add an anecdote before the general point is made. The
observation is partly inspired by another of my listening sessions. This
time it was a trivial anecdote about a small but dramatic conflict of hikers
and cyclists, a true clash of the Diadochs on a narrow bridge, exchanging
threats and insults as told by a cultural studies guru in one decent sea-
food restaurant in Zagreb. I was a part of the company this time, not an
inadvertent spy, and our subject was combining magnanimous leftist
phrases with a colonial arrogance (obviously, I am retrospectively guilty
of some all-too-human participant observation from my side). The out-
come of the conflict, a rashomon on the countryside bridge that escalated
after rude words were uttered in a narrow situation, is less important
than a theoretical point of structuralism and anthropology that, however,
has nothing to do with Lévi-Strauss. Let me shamelessly generalize: driv-
ers and cyclists tend to hate the pedestrians. Cyclists and pedestrians
tend to hate drivers. And, of course, to complete the cycle, pedestrians
usually hate those with vehicles (for the baroque, the reader can add
bikers to this system of equations). These generalizations are especially
true when a lack of space is present, even if one belongs to all three
groups and roles, and many do.
Cycling in Zagreb, where I live, is nothing like Amsterdam, but as it
got denser, the grumbling newspapers opinions and commentaries, part-
ly humorous because of the triviality of the subject, partly serious, ap-
peared, lamenting the terror of the cyclists ringing and besieging poor
pedestrians, rushing out in front of cars, and generally jeopardizing traf-
fic. The otherness is structurally induced by obstructions and possibil-
ities, bridges and vehicles, in the general statistics of conflict. Animosity
is built, punishment administered in this or that way. Morality follows
interests and the existential positions in the struggles. All of these funny
commuters taken as such, outside of the community, other allegiances
 Dismantling Sorrow 507

and roles, are small Marxists and Nietzscheans, to wit, not the followers
of the doctrine but their appreciative cannon fodder. The point is, in other
words, that the three monkeys cannot see, hear, and say evil if it is not
before in them, stemming from somewhere. The morality is relative to
the fact if you walk or drive, and what you drive. So is evil, depending
perhaps on the fact if you are a cyclist or a pedestrian. There is only will
to power. As we have written in the fifth chapter, Devadatta—by the
Buddha himself called a spittle to be ejected, according to the Pāli Canon,
who tried to take the Buddha’s place and tried to kill him before dividing
the sangha—may simply be a smirched reformer who challenged the au-
thority of an old and fat patriarch whose place he has seen, as others did
but with less hypocrisy, as his ambition, replacing the sublimations of
nirvana with the good of worldly power.
This opens a variation on the theme, although with a moralist over-
tone of affirming particularism against various imposed false universal-
isms that entrench identities. It is present in Svendsen, a Norwegian aca-
demic whom I discuss a bit later since he mostly falls within the more
conventional camp of accepting a minimal consensus of morality. How-
ever, in his typological work on the subject of evil (Svendsen 2010), on the
track of Baumeister, Kekes, and others, Svendsen insists that—aside from
caricatural demonic evil, Arendtian stupid evil, and more quotidian eve-
ryday instrumental evil—the idealistic evil, the one that poses some kind
of moral universality, a telos mandating erasure of what is called evil by
that evil, actually produces the worst evil in a world that is, empirically
speaking, not Manichean. “Ideas about evil have brought more evil than
anything else,” he claims in his lecture “The Nature of Evil,” held at the
Institute of Contemporary Arts in London in 2010 (ICA 2010). The rele-
vant point here is that the problem of evil, from the philosopher-god’s-
eye moralistic point of view is constructed and produces suffering, death
and various bad things about which there is minimal ethical consensus.
What is good for the official political ethics of the Nazi regime is not from
the perspective of the contemporary Germany as the cornerstone of the
European Union.
Auschwitz, the war in Bosnia and Herzegovina, persecutions, torture,
and all the other things Svendsen evokes from the usual lineup are not,
however gruesome, for him a metaphysical evil, but evil that is done by
concrete subjects to other concrete subjects operating in concrete social
and political circumstances. And the important part of this, for him, is
exactly in “us vs. them” distinction (e.g., Germans vs. Jews, Serbs vs.
Muslims), where abstract identifications break all the concrete bonds and
qualities of “real” life—that is, life not driven by moralistic political ideol-
ogy that may mandate destruction. Svendsen, identifying himself as Aris-
totelian now and then, claims that exactly the group solidarities and col-
lective ideologies—particular universal as a militant religion or universal
particular as an expansionist ethnic nationalism (I think it is equal for his
508 Chapter 8

argument) trump Aristotle’s idea to treat the equal equally and nonequal,
nonequally, the like cases as like, and the unlike as unlike. While the
devil is exactly in the ontology of what is like and what is unlike, and
operationalizations of Aristotle’s idea of distributive justice to give just
desserts according to the distributive criteria can work perfectly with
various “idealisms,” giving good to some and evil to some others, Svend-
sen plays the language game card. The devil does not reside in the detail,
but in the division: as Bourdieu’s kathegorein means to publicly accuse so
diabolein means to divide. The devil and the problem of evil are in the
divisions of various ideologies pontificating about evil, with Gods (with a
capital G) strongly present on both sides in the conflict “supporting their
cause” (Bernstein 2006, 86). This is exemplified in Connolly where the
problem of evil is transposed on another level.
Connolly speaks of the transposition of “the primordial experience of
suffering into the theistic problem of evil” and of secular doctrines that
work in a similar fashion since they are built on, in a seductive metaphor,
“the debris of broken theologies” (Connolly 2002, 2). Based on detailed
readings of Augustine, Nietzsche, and Foucault, his ambition is to weave
“a post-Nietzschean political theory” where the problem of evil is located
within the thickets of identity-difference relation:
Traditionally, the first problem of evil is the question of how a benevo-
lent, omnipotent God could allow intense suffering in the world. Typi-
cally, the answer involves attribution of free will to humans to engen-
der a gap between the creative power of the God and the behavior of
humanity. What I call in this book “the second problem of evil” flows
from the social logic of identity\difference relations. It is the proclivity
to marginalize or demonize difference to sanctify the identity you con-
fess. Intensifying the second problem of evil is the fact that we also
experience the source of morality through our most heartfelt experi-
ences of identity. (Connolly 2002, xv)
I do not want to enter into the discussion of Foucauldian genealogy as
ethical program, probing uncovering forgotten choices and impositions,
and shifting “the center of gravity of Nietzschean discourse from heroes
and classical tragic figures to everyday misfits such as Alex/Alexina and
Pierre Rivière” (Connolly 2002, 12, 187). More than as academic program,
Connolly’s discourse is interesting here because of the world picture he
criticizes showing that it creates problems from its own presuppositions,
of course with tangible consequences felt in every pogrom in history.
Punishment is important within that framework since it rectifies the or-
der of things in a world of theodicy postulated to be good against “[t]he
fundamental unfairness of life” that, Monty Python excluded, appears as
a universal experience (Connolly 2002, 1). The chain is as follows: evil is
identified in suffering, human agency imputed as a cause of evil, often in
the form of a mere scapegoating, and “the Other” suffers high risks of
 Dismantling Sorrow 509

punishment. On the higher scale, this is associated with a scholastic rea-

soning on God’s or the world’s goodness in the Popean Deist verse. It
will easily reach a conclusion where “every apparent evil must be part of
some larger, providential plan if your god is to be protected from any
taint of evil himself” (Connolly 2002, 143). In an Augustinian manner, the
wicked will is then postulated as a solution since even hardened corrupt
individuals who cannot do otherwise hide an initial bad choice some-
where in their life paths. Since responsibility cannot be shifted, punish-
ment is legitimated, and provocative Connolly’s point is that there is a
hidden Augustinianism in Sartre, at least concerning Augustine’s view
on God’s legacy concerning “responsibility and punishment”: “Certainly
Sartre, the atheist, could have written these lines in toto, and many, many
others would concur automatically in their central thrust” (Connolly
2002, 145).
Evil as a part of the problem of evil: as with Nietzsche, this is again
nothing new, and it comes not later than Hölderlin’s pantheist sentiment
pithily expressed in a short (and as academic critique would say: sweep-
ing) poetic epigram that he scribbled as the eighteenth century was to
expire. It claims it had found nothing less than “the root of all evil”
(Wurzel alles Übels) in an all-too-human striving of individuals and collec-
tivities for distinctive (and divisive) singularity on various levels: Einig zu
seyn, ist göttlich und gut; woher ist die Sucht den/ Unter den Menschen, daß
nur Einer und Eines nur sei? (Hölderlin 1976, 179). 18 Michael Hamburger’s
translation specifies the German metaphysical mold into somewhat more
specific political and epistemic entities: “Being at one is god-like and
good, but human, too human, the mania/Which insists there is only the
One, one country, one truth and one way” (Hölderlin 1990, 139).
Connolly’s position and partly Svendsen’s simply restate Hölderlin’s
short poem. There is even the nuance of the old liberal-democratic cri-
tique, in a Popperian style, of totalitarian ideologies that pretend to know
the historical truth often associated with a mission of a particular political
regime. Or the evil resides here in any type of what Lévi-Strauss would
call ethnocentrism, but not as an imposition or judgment of other culture
by the measure of one’s own, as a sociological operation so to say, but as
a psychological and philosophical problem. It is a kind of conceit of iden-
tity unproblematized, which as a normative cure interpellates individuals
to play strangers, following Kristeva, in order not to fall into a swamp of
common sense and nonreflection about one’s own culture and values, to
get dehumanized by entering into the role imposed by the politics of the
state leading to violence (Tripathy 2014). To escape evil on a grander
scale here, of civilizational clashes but also of forfeiting one’s own cul-
ture, it is to walk a tightrope of identity and difference according to
Connolly, which philosophically preoccupies the literature after Hegel.
Even if idea of evil “as a malign force, a maleficent agency, a deliberate
perversion of the order of the world, is a deep-rooted superstition” (Bau-
510 Chapter 8

drillard 2005, 160), this tightrope of identity and difference is notoriously

hard to walk on, and philosophy may not be helping in an age that
sometimes seems to have caught the worst of both worlds. Another of
Baudrillard’s sentences pinpoints the malaise of an age whose entropic
symptoms seem to be beyond the usual help of Hegelian dialectics or
Marxian forces of history: “We live in terror both of the excess of meaning
and of total meaninglessness” (Baudrillard 2005, 134).
Be that as it may, note that with these ideas about evil coming from
the absolutization of the same, the very notion of ontology, which is
made operative as a handy classificatory tool in this treatise, may be
disputed. If even more or less humanistic Sartre exaggeratedly saw hell
in others (L’enfer, c’est les autres), not necessarily as demons to be pun-
ished but as mirroring our own problems, more angelically disposed
Levinas saw heaven on earth in the faces of his neighbors in the sense of
the possibilities to the chance for radical ethics as the first philosophy:
even God of heavens was accessible without losing transcendence (Le
Dieu du ciel est accessible sans rien perdre de sa transcendance). This is, of
course, not a religious banalization but an introduction to the more ab-
stract scholastics that refuses ontology as a sort of crypto-ethical politics
of identity. It is an “egeology” on the road to politics of totality as a
chimera of closed articulation, if Levinas’s speculations may be rendered
to sound like ones of the partly Lacanian discourse theorist Ernesto La-
clau.
The problem of the other, personal with a big “O” (autrui) and more
general with a small “o” (autre), is the one that often calls for destructive
political solutions. Unspoken but tallying ontologies erase individual
subjects and prepare the terrain for politics. And politics built on ontolo-
gy escalates in the concrete political projects associated with the mythical,
a more primitive and destructive Siren call of the Gemeinschaft, as in
Levinas’s essay on Hitlerism understood not as madness but, more pri-
marily, as a nostalgic “awakening of elementary feelings” (Levinas 1990,
64). 19 Levinas is quite idealistic, wanting to replace this combination of
egoism and metastasizing collectivism with a radical peaceful transcen-
dence and altruistic “being for Other” that is, however, quite at odds with
his introductory diagnosis from Totality and Infinity, subtitled as an essay
on exteriority (essai sur l’extériorité).
One does not need to read the fragments of Heraclitus to see the
“harsh reality,” a formula that is judged by Levinas to be a pleonasm.
Instead he writes: “The state of war suspends morality. . . . The trial by
force is the test of the real” (Levinas 1979, 21). The intimate connection of
human beings and conflict, that we initially took as a presupposition of
punishment, is in Levinas not of a Hobbesian kind but a collective thing,
as in Hitlerism, striving to the total order with no exteriority, giving slim
chances to any eschatology and naïve prayers for peace. Within this dis-
course that negates ontology itself—against, for example, Catholic politi-
 Dismantling Sorrow 511

cal theorists such as Maritain for whom humans have a common ontolog-
ical structure and teleology just as pianos have keys and are made for
playing (Maritain 1951), there is a limit for individual faces. The harmoni-
ous choir of perfect polyphony has an earthly boundary in death as abso-
lute violence, according to Levinas, the Otherness that cannot be appro-
priated. Primo Levi explained that he became Jew in Auschwitz. The
extreme project of destroying individuality and dignity undertaken by
the Nazi regime left a grave mark, trauma of the erased self. By commit-
ting suicide, in a bizarre way similar to that from Sartre’s Dirty Hands,
Levi brought to the logical conclusion the evil project of imposed other-
ness negating the authentic Other that can be different than collective
specified for annihilation. That also explains a paradoxical saying of Elie
Wiesel: “Primo Levi died at Auschwitz forty years later.”
The simple “my nation, my identity, my security—right or wrong”
philosophically expounded in Levinas is something that repeats as a mo-
tive in Niebuhr. However, here we are already on the grace side and the
secularizations of Christian tradition, or to broaden it perhaps for the
more ecumenically minded, the Abrahamic religions. Abundamus dulcibus
vitiis, we abound in sweet vices, as Leibniz put it. It is the story of original
sin. I shall omit the basics—Bossuet’s Adam’s children haunted by sin
versus Rousseau’s good savages corrupted by culture—including its bit-
tersweet misogynist touch with “the policy of hell” playing on women’s
vanity (Defoe 1840, 93), and start with critiques in order to conceptually
sharpen this extreme through an interplay of thoughts. Ergo, Niebuhr.
The original sin and the paradigm of Augustine’s Confessions, contem-
plated by Lyotard in his less postmodernist intimate moments of close
reading, were not only criticized by Ivan Illich, who favored Epimetheus
over Prometheus, the simpler one, the down-to-earth one against the hell
on earth associated with the ambitions of the more famous brother. 20 The
theologians did the same thing.
Reinhold Niebuhr kept the idea but accommodated it to the secular
age by turning it social. While human nature remains dark it can be
transcended but it is harder for collectives to do so. It is pride and deceiv-
ing self-love that plagues both overtly asocial elements dealt with by
criminology theoretically and criminal justice practically, and various
zealots, revolutionaries, politicians, and businessmen—and especially or-
ganizations and institutions. There are two aspects of the problem. One is
the Promethean illusion that one can exclude oneself outside of society to
be good without others. The second is the destructive lust for power, as
intimated in the fourth chapter: power and evil come pretty close for
concerned British liberals and the Protestant theologians of German de-
scent. For that reason, the doctrine of original sin was to be wedded with
liberal democracy and self-government instead of obedience to the prob-
ably corrupt nondemocratic authority. This is the paradox of moral man
and immoral society (Niebuhr 2013). Nationalism turns into imperialist
512 Chapter 8

chauvinism, class differences turn into exploitation. Institutions, social

mechanisms, and political dynamics make individual transcendence of a
moral man harder to achieve in a society. This kind of bad politics legiti-
mizes violent action when necessary and brings some Marxist overtones
to the story loved by liberals: “The differences between violent and non-
violent methods of coercion and resistance are not so absolute that it
would be possible to regard violence as a morally impossible instrument
of social change. It may on occasion, as Mr. Gandhi suggests, be the
servant of moral goodwill. And non-violent methods are not perfect
proofs of a loving temper” (Niebuhr 2013, 251).
Speaking of a Promethean illusion opens a Pandora’s box of revolu-
tions’ and social movements’ susceptibility to sin. Speaking of evil and
violence, the concept of an immoral society tends to be pretty encompass-
ing. This leads us, naturally, to a bit more secularized version of the
doctrine where theological discourse is more thoroughly diluted with
science, and original sin redefined as evolutionary propensity to violence,
with—developing and transcending Niebuhr—a strong relational and
structural aspect. For Suchocki, for example, evil is some kind of violence
against the good as well-being of creation. Against Augustine and Nie-
buhr, it is not a classical conception of rebellion through pride. It is a
“rebellion against creation through unnecessary violence” (Suchocki
1994, 13). This offends God indirectly: violence against God is brought
about by “participation through intent or act in unnecessary violence that
contributes to the ill-being of any aspect of earth or its inhabitants” (Su-
chocki 1994, 12). Since things—in a society but, more holistically, in the
world—tend to be interconnected (“We are sinners”), there are, accord-
ing to Suchocki, “far more guilty parties,” prompting a rhetorical ques-
tion: “All persons within society participate to some degree in the soci-
ety’s economic structures, international policies, racism and sexism.
Where does sin start and stop; where does guilt start and stop? And are
there conditions that orient us towards sin?” (Suchocki 1994, 12) There is,
on the other hand, ability for transcendence, the way of grace of our
dinosaur, and transformation of individual and society, paired with the
concerns of marginalized sexes, races, and ethnicities. Scholastically
speaking, this is a piece of relationist theology.
The vale of soul-making, to use Keats’s phrase, is a bit of a more
complex social and political arena where the theodicy of evil is not singu-
lar but a collective test. The quite common approach is to secularize the
conception, eschewing the empirical tests and relying only on the card of
inner feelings and religious and emotional compasses. The evil stays as
human impulse for destruction. Instead of discussing the late Freud, the
derivative vignette would do, involving another less disputed nine-
teenth-century hero of science. Evolution is not the new gospel, and Dar-
win is not the new Christ—at least for some who use this metaphor to
highlight irritation with the prophets who are held to see evolutionary
 Dismantling Sorrow 513

theory developed by a “Victorian naturalist” as “an unalterable truth,

which has been revealed to a single individual of transcendent genius”
(Gray J. 2014). In an atheist’s testimony of faith, Dawkins is portrayed as
a “coarse and tendentious” atheist bully who lacked compassion when
witnessing bullying at the boarding school (although not as drastic as in
the Houellebecquian narratives). John Gray, “the Schoppenhauerian Eu-
ropean Buddhist of our age” (Critchley 2012, 115), proclaims his atheism,
but opts for an allegorical reading of Christian tradition. Gray accepts
original sin apart of the “morbid preoccupation with sexuality” of its
interpreters:
Even so, it is an idea that contains a vital truth: evil is not error, a
mistake of the mind, a failure of understanding that can be corrected by
smarter thinking. It is something deeper and more constitutive of hu-
man life itself. The capacity and propensity for destruction goes with
being human. One does not have to be religious to acknowledge this
dark fact. With his myth or metaphor of the death instinct thanatos,
Freud—a lifelong atheist—recognized that impulses of hatred and
cruelty are integral to the human psyche. As an atheist myself, it is a
view I find no difficulty in sharing. (Gray J. 2014)
This sounds pretty radical—almost as radical as Metallica’s early hit
heavily performed to this day, which was, in fact, the first studio song of
the band, recorded under the name Seek & Destroy. The singing confes-
sion accompanies the frenetic trash metal music: “There’s an evil feeling
in our brains/But it’s nothing new, you know it drives us insane.” While I
am not taking metal folklore seriously, still being too young to qualify as
an old concerned moralist, the lyrics taken at face value are a pretty
straightforward expression of the idea of radical evil as a subjective posi-
tion. More classically within this mainstream moralist point of view, this
idea is present in Kant, both a deeply religious person and one of the
acclaimed champions of Western philosophy serving as adversary to var-
ious old-style theological theodicies. Das radikal Böse recycles the recog-
nizable religious ideas of a corrupted human heart and the frailty of
human nature beyond banal evil of the cogs of bureaucratic machines.
Original sin figures importantly for this pious Pietist (Wand 1971, 329) of
partly Scottish descent, in principle open to moral advancement where
genuine maxims govern universal morality or, in a lack of those, a prag-
matism of an outward obedience to law (see Kant 1960). Even if it was not
a reason for big metaphysical fuss or theological demonization, Kant ac-
knowledged that “human beings do, alas, fall into brutish vices,” that
they do premeditated evil deeds, and that malice is “no stranger to hu-
man nature” (Kant 1996, 166, 207–8). 21 Again we have Malick, grace, and
nature—and law in between.
Further down the secularization road, the metaphor of the roots of
evil implies at least two things. First, the acceptance of normativity: it is a
514 Chapter 8

moralism that sees something as evil, judging nature from the perspec-
tive of grace. And, second, causality: plants, trees, weeds, everything that
grows has a base, a step lower in the causality chain, the place where it
originated and that has to be understood in order to change it, divert it,
curb it, fight it, destroy it. Evil is a moral name for a bad plant, and the
roots of evil as a metaphor has been accepted even by those who on the
surface oppose such moralism, arguing against metaphysics. We are in a
cultural world of values, and roots don’t have to be deep, only deep
enough for the acceptance of causality as a type of reasoning that digs
beneath the surface of the phenomena. Our friend Kekes offers an exem-
plary exercise, and Svendsen—all ideological and stylistic differences
notwithstanding—offers a similar exercise in uncovering the roots of evil.
As a conventional carte blanche, evil is not so problematic. It is a
common name for murder-death-kill and some other things, on an indi-
vidual or collective scale. It is accepted within the general way of grace,
with more or less success crystallized in culture—a contested concept
which I have used and abused much within these pages, but which may,
perhaps, as politics or a type of diffuse politics, be a destructive force on
its own. A more general way to put it leads us to a narrow definition
which is operative for Kekes in his later treatment of the subject, associat-
ed with the metaphor of the roots of evil (Kekes 2005): there is malevolent
intention, serious harm perpetrated and there is lack of plausible moral
excuse for doing it. This encompasses all or almost all the earlier cited
cases (the “arpeggios from hell”), at least for the mainstream reader.
Kekes is not ready to dissolve evil in explanation or cynically discard
it in a Nietzschean way. And he is no theologian but a conservative
political philosopher. From a more religious point of view, he seems to be
cursed with a religious meta-vocabulary but without accompanying
faith: the “predicament of a secularist,” as one author calls it (Michael
2007). His position is known and already depicted ad nauseam on these
pages under different names dealing with religion, fiction, or political
theory. People aren’t good. They are evil—that is, often irrational and
destructive. Custom and culture as a living organism, not abstract liberal-
ism, keep them in order. Strict and swift punishment especially helps to
maintain order, along other more constructive things such as moral edu-
cation. Egalitarian socialism or naïve liberalism are in effect bad, since
they give people the opportunity to behave badly and probably lead to
the decadence of culture and destruction. I won’t add further cases and
their analysis—crusaders slaughtering heretics, Robespierre, a Nazi lager
capo, Argentina’s dirty war, the Manson family, and John Allen—ana-
lyzed by Kekes. I instead focus on Kekes’s general points made on the
basis of analysis of these cases.
Evil—the definition and the cases—as an effect is “particular and
multicausal,” meaning that “causal efficacy” can be caused by one factor
but more often it is a combination. An empirical typology is construed in
 Dismantling Sorrow 515

this sense, enabling one to navigate within the particulars. It is fourfold,

neat as usual: evil results from “evil propensities” of human psychology
(internal active), lack of self-knowledge (internal passive), social condi-
tions that foster expressions of evil (external passive), and lack of con-
straints (external active) (Kekes 2005, 193–94). Understanding of these
enables a general philosophical platform from which to develop policies
that revolve around moral decency requiring condemnation of evil and
policy doing the punishment—although multicausality, of course, out-
side Kekes’s conservatism, calls for a more nuanced approach, not
cutting of the plant but weeding out the roots. The external passive cate-
gory seems to accommodate for this.
Although more in his own abstractions, developing an autochthonous
but generally intelligible set of interpretive categories, Kekes’s approach
is not far away from that of a social science and psychology—that is,
Baumeister’s treatise that distinguishes several typical motives and situa-
tions involving evildoing for instrumental gain, egotism that is threat-
ened, idealism of ideological projects, and sadistic pleasure. “Combina-
tions are harder to defeat,” writes Baumeister (2001, 376), in a sentence
Kekes could sign as well. There is proximal cause, a breakdown of re-
straints, and evil can be unleashed, a name they both use for unwar-
ranted cruelty and killing, by the positive law of “civilized nations” usu-
ally codified as severe crime. This common sense facing evil approach is
widespread.
We can, for example, return to Svendsen’s lecture based on his book
(Svendsen 2010). He also sees usefulness in the concept of evil helping us
to make sense of the “enigmatic landscape we call the world,” and he also
makes it “completely secular.” That means that, somewhat like Camus in
The Plague, Svendsen regards theodicies and their valleys of tears, which
say something is right or good enough despite the bad or serving a good
cause we don’t see or cannot grasp completely, as rationalizations, ulti-
mately working against pragmatic action against evil (which is, accord-
ing to Svendsen, bad but also might be self-defeating if there might be
evil in the very fight against evil). Various ideological phantasms, instru-
mental actions, stupidities, and demonics find place within his typologies
and phenomenologies. Although opposing the metaphor of roots and
speaking about the surface, he ends up pretty much where Kekes and
other secular theorists of evil are. Few extra touches are worth highlight-
ing. First, Svendsen is against aestheticization of evil, seemingly both on
academic and political grounds. He claims evil feeds on its fictional na-
ture and an aesthetic gaze overcomes us. We lose the sight and feeling of
horror but we may also buy into a myth and transform it into an opera-
tive ontology. A word or idea as “means of representation”—he refers to
Ricoeur here (see Ricoeur 1986)—may be confused “with an active force.”
Second, Svendsen’s practically disposed opposition to the pondering
“about the intricacies of theodicies” frames the problem of evil as a con-
516 Chapter 8

crete problem addressed “in moral and political arena” (ICA 2010). It gets
down to Voltaire, with some more academic elaboration and a bit less
spirit: let’s tend our garden, take care of the plants, water them, and
exterminate the weeds (like in de Saint-Exupéry) or vermin, although this
second part of the metaphor is troubling, not only on the level of the
metaphor and Masanobu Fukuoka’s shizen nōhō having to do with the
natural farming philosophy and practice. Finally, there is much in the
following Svendsen’s statement: “It is striking that the most explanations
of evil simply explain it away” (ICA 2010). It tends to dissolve. Kekes and
Svendsen, however, keep it together with human agency. “Without free
will, moral evil doesn’t exist” (ICA 2010) is Svendsen’s point. Consequent
determinism erases moral evil. For Svendsen, on the other hand, every
one of us is at least a bit evil and has done something on a small scale that
is labeled as evil. Evil is bad human agency in the social and political
arenas.
It is the same with Kekes but also with Hobsbawm (2007), as we have
seen. Although Right and Left differ highly on pinpointing the main root,
often not only downplaying some roots but completely negating them,
they won’t challenge the main framework. Often they will agree, express-
ing the same with different languages. Sexual energies vented at the sta-
diums in a Huxleyan settings of modern civilization, of a nature un-
changed for millennia, is a Freudian way to express Kekesian story about
evil propensities or human dangerousness à la Hobbes. Fallen states are
an external passive factor, providing social conditions for evil acts. This
consensus in spite of the ideological differences is similar in our presenta-
tion: two sides of the same coin of grace, moralizing evil and searching
for its roots in different places in religious or secular languages. It is the
old figure of coincidentia oppositorum. Universal suffering is associated
with violence and the roots of evil on different places.
This opens some space for the brief presentation of the evil men litera-
ture, to name it after the one of the last of the noticeable contributions to
the series (Dawes 2014a). It is a genre generally ready to search for con-
textual roots of evil beyond general, national, or individual guilt and
punishment. In its mainstream, the genre is sort of a footnote to Zimbar-
do, who now gives TED talks summarizing his experiments on how con-
texts bring out horror from us, institutional and situational—and, we
might add, political. It is a historical and also cotemporary perspective, as
far as history serves as a teacher of life. The advantage of the genre,
which also found its rich venue for reflection in fiction (think of the
German films such as Das Experiment or Die Welle), is to bring down the
sweeping claims to a more nuanced empirical historical context: scholas-
tic battles over agency and structure, intention and function, as well as
ideological ones over the political responsibilities for evil, to the down-to-
earth capillary politics of violence.
 Dismantling Sorrow 517

Perhaps the most famous is Browning’s book about a battalion of

ordinary men committing atrocities, exhibiting how the political and situ-
ational context may bring out the worst in us in a specific situation
(Browning 2001). Dawes continues this genre by interviewing Japanese
war criminals, who come out as dehumanized by their training and
group pressure, a product of the political-military machine transferred
from the barracks to the war-crimes grounds. Dawes interpolates the
interviews with an erudite stream of conscious of an English professor,
offering a wide array of reflections about theodicy ranging from “vast
imbecility” of Hardy’s “mighty to build and blend but impotent to tend”
to the mentioned Keats’s “vale of soul-making” (Dawes 2014a, 104–9),
which is bit more generous to God’s alleged efforts in building the world
that makes sense. To offer another medium conveying a similar message,
we should take a look at Radical Evil (Radikal Böse). It is The Counterfeiters
(a film about camp inmates forging money for the Gestapo) director Ste-
fan Ruzowitzky’s documentary with enacted scenes and a Kantian title. It
is also ironic, dealing with ordinary men, and directly inspired by Brown-
ing’s book. Ruzowitzky wants to show how social conformism is always
actual and transposes the historical lesson to the realm of social sciences
governing our present: “This is not about history. This is about psycholo-
gy, politics, sociology. These things happen right now . . . you also have
some ordinary young people who suddenly become Jihad fighters and
suddenly show up on Facebook with cut-off heads. I think in many ways
it is similar mechanisms that are in place.” As other similar studies, it
reduces the distance between ordinary men and the putative willing exe-
cutioners. According to Ruzowitzky, the outlook is bleak: it is not the
stereotypical triumph of optimism and happy endings that still prevail in
the film industry, but “the triumph of evil in the end of the day and the
human spirit disappearing” (Ruzowitzky, quoted in Macnab 2015). Con-
formism of a corrupt society and its members leads to evil, but Ruzowitz-
ky also highlights the individual’s ability to say no. He doesn’t erase
autonomy, pointing out how “no” is often not associated with the para-
lyzing fear of punishment but with ostracism and a lack of acceptance
and advancement within group (Ruzowitzky, quoted in Polimac 2014).
The point of this literature is not to make evil disappear but to criticize
simplified demonizing and scapegoating, whether of individuals or
groups. This is perhaps best illustrated by the black sheep of the genre
associated with the famous syntagma of willing executioners. Goldhagen
wrote the book of the same name—Hitler’s Willing Executioners—referring
not to the mechanics of the political machine, psychology of group pres-
sure, situation of war changing the biographies of ordinary men, but to
the widespread anti-Semitism as a trait defining German culture, divid-
ing “us” from “them” and warranting the destruction of them, that is,
Jews and some other peoples. It is Hölderlin, Connolly, and Svendsen as
a general trope filled with controversial political content. The book was
518 Chapter 8

sold, praised, and awarded but also trashed by scholars to the point of
misery, for example, by Raul Hilberg and Yehuda Bauer; it was dis-
missed as a piece of tendentious vilifying intentionalist bad scholarship,
more moralistic then historical, as an “ill-tuned instrument,” at least to
the scholarly historian ear, falling neither within the genre of history nor
political science (see Montgomery 1999, 25). In Goldhagen, it is the story
of secularization and spreading of medieval religious anti-Judaism as a
cultural value merging with German identity, making up a nation of
“willing executioners” who set out to exterminate the Jews, while all
other structural factors appear as ephemeral in this narrative on evil and
punishment—from the psychology of peer pressure to the politics of bu-
reaucracy: “What these ordinary Germans did could also have been ex-
pected of other ordinary Germans” (Goldhagen 1996, 402). Browning did
not spare Goldhagen in his meticulous response that appears as an after-
word to the later editions of his book (Browning 2001, 191–223), pitting
the universality of the problem against the demonizing of the particular
culture. Goldhagen’s approach, from this vantage point, was evaluated
as “a pseudo anthropological” and politically noxious “invitation to ex-
tremism” that “contributes nothing to understanding why human beings
do unspeakably inhumane things” (Montgomery 1999, 71).
It is not the point of this section to ultimately evaluate this contribu-
tion. As we have seen, some arrive at the human propensities mandating
punishment as a method of retribution and utilitarian governance of indi-
viduals, some dissolve violence in discourses and explanations. In line
with the classicist spirit (the Montesquieu’s Spirit of the Laws informing
rational lawgivers about comparative intricacies of laws, crimes, and
punishments), bewilderment disappears when information and knowl-
edge displace shallow impressions and initial shocks. This does not stop.
According to Pierre Desproges, a late French comedian famous among
other things for his 1980s short radio format show Chronique de la haine
ordinaire, you can have fun with everything, but not with everyone. 22 He
was dying of cancer and, consistent with his principles, had fun up to his
epitaph in the Père-Lachaise Cemetery, which read: Pierre Desproges est
mort d'un cancer, étonnant, non ? meaning: “Pierre Desproges died of can-
cer, astonishing, isn’t it?” It is the same with explanation: it does not stop
in front of Auschwitz, as another object if explanation, as professed by
some of the authors portrayed—for example, by Svendsen, who argued
that mystification only serves evil, however grave the subject. The most
horrifying cases of killed babies, mutilated humans, and those struggling
in the camps stripped of human subjectivity and dignity, on the one
hand, and on the other, the simpler cases, tragic in their pointlessness of
easy manufacture of ruined lives: a drunk driver, to take a stereotypical
but often too real example, who escapes from the place of accident soon
to be caught, of course. A reckless drunkard, one of so many, is magically
transubstantiated into a criminal, unlike so many. In such moments, lives
 Dismantling Sorrow 519

are changed. There is a dead body on the road, and the drunk driver tries
to escape. It is nature instead of grace. Crime and punishment ensue.
From traffic behavior to concentration camps, from banal bullying to the
intricate sadism, there is one sovereign: the explanation.
The point is the following: even if stories—and, to broaden the stakes
a bit, natural and social history—erase or diminish evil as individual
agency and reduce the suffering to “we could have seen it coming,” there
is a sense, I think, in which it is not explained away. History goes on;
policies build up and go away; moralists, romantics, Nietzschean cynics,
and rational Beccarias enter and exit the stage of violence and punish-
ment—but traumas continue, personal and collective. It is a slow and
silent river of tragedy with myriad subjects suffering, of victims anony-
mous and not symbolized outside of the beauty of myth and the fixation
of discourse. In that sense, one can repeat the echoing lines of the Heart of
Darkness: “The Horror! The Horror!” and immediately amend Conrad
with a paraphrase from Fuentes: “The Violence! The Violence!”
This horror of violence, whispered with pause by Brando in Coppola’s
film, keeps the problem of theodicy going, trying to transform melan-
choly into hope. There is luck, victory, and joy. There is happiness. There
is humor. There is love. However, if there is so much cruelty and suffer-
ing, how can there be God, or more scandalously, how could a higher
sense not exist? That would mean that the river of pain in space and
time—the universe of those feeling bad or not belonging to the world
who live, suffer, and fade out—is meaningless? The simple tripartite syl-
logism was offered already by Epicurus, who did not need gods to
achieve ataraxia in an individual life. Against theodicy starting from the
paradox of an omnipotent and good-willing god on the one side and the
ostensibly bad world or a world where bad things happen on the other
side, the poem puts several possibilities at odds:
Is God willing to prevent evil, but not able?
Then he is not omnipotent.
Is he able, but not willing?
Then he is malevolent.
Is he both able and willing?
Then whence cometh evil?
Is he neither able nor willing?
Then why call him God? 23
Either a deistic deity in a strait-jacket, a laughing devil, or a chimaera that
neither can nor will. Nor does it exist, if we follow the implications. As
for evil, one way is to ignore the problem, let it thrive and destroy outside
of any morality seriously intended. The second way, the one of grace, is
to face it and explain it, deal with it politically and morally as a human
effort. All the cases submit to these logics but the pain stays. To use
Milton’s language, paradise lost is not paradise regained. To see the bads
520 Chapter 8

and explain them is not to enter paradise. Theodicy deals with this prob-
lem. I offer several attempts before closing the book.

FROM CURSE TO THE BLESSING OF BABEL: DESPAIR, IRONY, AND

RATIONALIZATION OF SORROW?

A somewhat malicious remark was made about the cited knowledgeabil-

ity of George Steiner. In an amusing way, it was strongly insinuated that
he is only a “high-level kibitzer” (Epstein 2007, 256), perhaps not really
understanding the subject matter in depth but posing with snobbish com-
ments and pompous erudition, thus irritating the more mundane spirits.
Whether one blogger, following the lead of this metaphor, has found
some mistakes or not interpreting the issue at matter here (Cook 2005),
this metaphor about Steiner still sounds nasty. It puts him in the coffee
house of those who easily comment on games of chess grandmasters
from history to the present, from Capablanca to Carlsen, operating easily
with cultural references but without the deep practical understanding of
the game and its inner logic. They can talk but cannot play.
However, where the challenge is serious, the possibility of salvation
also rises, as the saying goes. I find the metaphor useful and not at all
offensive in a sense. In some cases it is good enough, or perhaps not even
easy at all, to be a high-level kibitzer, which was my position in writing
some parts of this book. I am not even going to pretend that I have the
necessary knowledge of ancient languages, theology, and hermeneutic
skill to really interpret the story of Babel on the level of what it originally
meant, if that is possible or today meaningful at all. I simply toy with
convincing enough interpretations taken as granted; the reader can easily
judge if that makes any sense. My idea is to combine it with the biblical
story of Job. After recounting, very briefly, those stories of confusion and
suffering, I present three readings after the literal one of God’s omnipo-
tence and human’s limited understanding of evil in the world: the affir-
mation through melancholy or anger, the refuge of irony, and the ration-
alization through the higher plan, a sort of “accentuating the positive.”
These, of course, find some parallels in the theories about evil deeds thus
far offered: maybe horror is not so bad, or it’s funny, but as far as it is
accepted, it opens up space for politics and hope.
The story of Babel is one of the ancient world-making myths, a cultu-
ral tenet probably present somewhere in the minds of those at an early
age exposed to Tanakh or to the Old Testament, which is for me a cultu-
ral place where this story was in an early age encountered (Gen. 11:3–4).
It is at the same time a story about humankind’s hubris, about punish-
ment and an explanation or theodicy of diversity. In Christianity it is also
a part of wider mosaic of the original sin narrative, dealing with the
humankind’s corruptness. People speaking one language decide to reach
 Dismantling Sorrow 521

the sky. The god says, “the people is one, and they have all one language;
and this they begin to do: and now nothing will be restrained from them,
which they have imagined to do.” How does Almighty tear the tower, the
mighty ziggurat, as it is called in Rintaro’s Metropolis, haunting mankind
even today in various interpretations beyond the Japanese anime indus-
try? Not through floods, earthquakes, and other elements under his com-
mand, but by meddling with human agency, mankind’s ability to com-
municate. He confounds their language so “that they may not under-
stand one another’s speech” and as a result they scatter around in tribes
“upon the face of all the earth.” Instead of going up, they go around. The
standard reading, or at least the one most easily available, is that it is a
simple allegory. The tower is not literal. It is a symbol of hubris, an
overconfidence that crushes when one’s powers are overestimated in
world that is, from our mortal limited perspective, not fully understood.
It is a story about humility where overambitious projects bring harm
because of inevitable differences and misunderstandings. Man is not all-
powerful, God is. Man gets punished in God’s world for his arrogance
whenever he forgets that simple fact. The confounding is then not a mali-
cious agency but a way to say that humans as they are do not even
understand each other, which they often forget. I acknowledge, of course,
that I am adding a Deistic touch of self-punishment to the world of a
vengeful Old Testament God, but I can probably afford that luxury since
other interpretations ensue.
The second story is also one of the better known in the Tanakh and the
Old Testament, perhaps going a bit further in the extreme. The dramatic
enacting of “the problem of suffering, as graphically exemplified in the
story of Job” (Breasted 1959, 247), carries a radical point: legitimizing
religious obeisance come what may. Not only that suffering and punish-
ment ensue when the rules of God’s world are forgotten, but its theology
radicalizes the bad condition of human beings in this world; suffering is
inexplicable and punishment accepted a priori even if humans cannot see
what they are guilty of. The only way out is the unshakable belief in God
whatever evil comes, a credo quod absurdum, which discards with all ra-
tionalizations as cheap tricks. After all the evils on Job’s assets, family
and body strike him one after another in a series of hardly endurable
harms, Job is in despair: “Let the day perish wherein I was born, and the
night in which it was said, There is a man child conceived.” (Job 3:3).
Job’s sorrow and bitterness are explicitly mentioned (3:10, 9:18) and he is
not able to see the reasons for his suffering: “For he breaketh me with a
tempest, and multiplieth my wounds without cause” (9:17). Job is, how-
ever, wise enough to discard the longish speeches and rationalizations of
“vain words” (12:3) offered to him. The motif of humbleness and punish-
ment is clearly present in these lines: “Be ye afraid of the sword: for
wrath bringeth the punishments of the sword, that ye may know there is
a judgment” (19:29).
522 Chapter 8

After all is said and done, God solves the puzzle. He enters the scene
in his recognizable manners. From a whirlwind, Yahweh condemns
“words without knowledge” (38:2) and asks a rhetorical question that
firmly puts humans in a position of noncapability to understand, causing
humbleness before God as the only option: “Where wast thou when I laid
the foundations of the earth? declare, if thou hast understanding” (38:4).
After he has stood all the tests, induced by Satan tempting not Job but
God himself, from his children and servants killed to his body covered
with boils, and after rants from Eliphaz, Bildad, and Zophar (and a
healthy intervention from Elihu, who reminds that even knowledge is
God’s blessing, foreshadowing the Calvinist doctrine of predestination),
and remained faithful to God, knowing that with good one must accept
evil, Job is rewarded by good health, even more children, and more mo-
bile and immobile assets. He dies “being old and full of days” (42:17).
Suffering and punishment are once again a part of higher wisdom as
explained by Elihu’s Hymn to Wisdom (36:15), at least for those who do
not lapse in their faith and lose their spirit, as in the depressive “darkness
implacable” lines of an apocalyptic novel of the world failing: “The
crushing black vacuum of the universe. . . . Borrowed time and borrowed
world and borrowed eyes with which to sorrow it” (McCarthy 2010, 138).
The interpretations of this story, which in the above reading “allegor-
ized . . . Adamic creation as a moral lesson in humility” (Bloom 1991,
176), abound even in the narrow nonscholastic or nontheological litera-
ture that I happen to control. In Jeremy Bateson’s words, “Job’s narrow
piety, his purposiveness, his common sense, and his worldly success are
finally stigmatized, in a Marvelous totemic poem, by the Voice out of the
Whirlwind” (Bateson 2000, 453). Poetry can be reduced to mundane
prose, more clearly speaking to each and every one of us. In that interpre-
tation, the book addresses everyone’s suffering, bringing the universal
human condition to the extreme. The modern version is found in Mendel
Singer, Joseph Roth’s Job, a protagonist of a 1930 nostalgic novel Hiob
that narrates a story of “a simple man” facing family tragedies in relation
to World War I and finding happiness in the twists of destiny. In yet
another take, an ironic piece of sociological imagination, Goffman in the
Frame Analysis makes of it a life policy, framing and testing lesson:
There is a class of fabrications much like training hoaxes through which
an unsuspecting individual is deceived, the aim being to test his loyalty
and character. The classic instance of these “vital tests” is the stiffish
one God allowed Satan to run on Job (“Behold, all that he hath is in thy
power; only upon himself put not forth thine hand”), wherein the sub-
ject, in spite of the calamities that were made to befall him, stood firm
in his faith, and at the end of the test, when nothing more could be
done to his kin, his chattel, and his real estate, was declared, was de-
clared worthy and rewarded with twice his original investment, a long-
term gain on capital for not selling Him short. (Goffman 1974, 97)
 Dismantling Sorrow 523

It is similar with the story of Babel. Dewey, in a spirit of pragmatic

progressivism, favoring scientific inquiry over legends, disparages God’s
authority in the matter, speaking of “the legends of a primitive Hebrew
people regarding the genesis of man” (Dewey 1991, 124). Shifting terrain
to the field of general communication, he claims that “[o]ur Babel is not
one of tongues but of the signs and symbols without which the shared
experience is impossible” (Dewey 1991, 142). I could continue with this
exercise much longer, but I shall constrain myself and provide three
somewhat more elaborate renditions that are interesting for our treatise,
first dealing with both stories, second with Job and some others, and
third with Babel, before wrapping up.
This first reading comes from a veteran Californian punk rock band
that formed in 1979, gained prominence in the 1980s, and still performs
under the name of Bad Religion. Although I more or less stopped listen-
ing to them, in my teens I liked Bad Religion’s music and I probably still
do: melancholic “oozing aahs” and rebellious lyrics still make sense, de-
spite repetitiveness and growing old—both they and I. To say that this
rendition of the problem of evil and suffering is both melancholic and
pugnacious, sad and redemptive, is at first counterintuitive since the
name of the band would suggest a simple irony or a mere mockery of the
old religious myths and their largely conservative role in a contemporary
society. I am not at all sure that the members of the band would share my
reading. 24 However, I think I can substantiate it well enough, and see
some of their lyrics—be it the first album called How Could Hell Be Any
Worse? or lyrics of such diverse songs such as “God Song” or “Los An-
geles Is Burning”—as dealing with the problem of theodicy as it is
present in Judeo-Christian tradition. Both songs I want to deal with,
“Skyscraper” and “Sorrow,” were written by Brett Gurewitz, coming
from a Jewish family in Woodland Hills, California. Known more formal-
ly as Mr. Brett, he is the guitarist and otherwise a producer, usually
responsible for the more poetic and poignant lyrics that balance nicely
with the more rationalist academic inputs by Greg Graffin, the lead vocal,
another chief songwriter and the band’s frontman.
“Skyscraper” is the penultimate song on the 1993 album Recipe for
Hate. The title is the modernist metaphor for the familiar motif and the
lyrics at first closely follow the biblical legend of the tower of Babel,
narrating about the hard-burned bricks and a city with a tower for the
world. The tearing chorus speaks about the consequence but from a first-
person perspective, as if the singer were the torn building (“Build me up,
tear me down like a skyscraper”), which will prevent unspecified “them”
from climbing up the walls. The tearing has a wider consequence. Divine
action is pointless and bad since it brings the destruction of this world’s
harmony (“Well madness reigned and paradise drowned”), as the Babel
collapsed in story that was both misunderstood and did not bring any-
thing good. But the misunderstanding is more feigned than sincere, be-
524 Chapter 8

cause another verse interprets the Almighty’s behavior with a simple

postulate of egoistic child psychology. He is just a kid, “a powerful and
uncanny male child” who “throws down what we build up” (Bloom
1991, 192), who destroys what he cannot own, even if it is a simple castle
made of sand that can altruistically be left for the usage of others or
destroyed in a tantrum of rage (“Like a spoiled little baby”). As the song
has it, he cannot risk to get caught since he cannot come out to play and is
afraid that humans will go away. So he exacts his revenge on Babel. In the
end, God comes out both as an immature kid and jealous father who
cannot leave his children to grow up.
The second song is the eighth from a later Bad Religion album, from
2002, also dealing with the religion-associated themes in its title, The Pro-
cess of Belief. The song authorship is credited together but it is a first
album after Mr. Brett’s return, with which the band regained some of its
lost success, and it has his strong authorial signature, including his guitar
solo. It is called “Sorrow,” it interprets the Book of Job and also involves
pretty direct quoting that leaves no doubt about the material and the
problematic, beginning with Job’s lines addressing his heavenly father
and cursing the day of his birth together with the sorrow of the world.
The world is seen as a bad place dominated by pain and offering no
consolation in worldly success or simple well-being by those who act
within a moral consensus. Evil begets them, often in contrast to those
who commit it, with a reference to the infamous wager (“Just to settle a
bet that could not be won/Between a prideful father and his son”) that
has the consequence of hurting good people. The guidance from the high-
er instance is sought since the reason for the suffering is not obvious but
the hope of “Sorrow no more” one day is seen in a utopian condition of
an all-encompassing moral strength of the uprightness of living souls.
This counterfactual is associated with the barrage of messianic motifs in a
song that replaces the decade-younger rage associated with a recipe for
hate with purer melancholia. The familiar pictures appear: end of wars,
end of political power, and the Judaist idea of God’s messenger is in-
voked, redeeming human evil nature in an operation that was already
realized in Christianity but is still expected to enfold in the eschatology of
Judaism and the Shia Islam: the soldiers may put down their weapons, or
the rulers may abdicate, but the redeemer will save humanity (“Or when
the only true messiah rescues us from ourselves”). Then, as the song goes
on ironically but not without hope, we could imagine the end of sorrow.
The songs blend nicely together in, at the same time, melancholic and
redemptive theodicy that laments the sorrow. In an interview about a
song written by his colleague Graffin, Mr. Brett agrees that the song
“God’s Love” is “sad, but . . . it’s also rousing”: suffering is not God’s
love, especially not when interpreted by religious fanatics: “God does
love us, but it’s hubris to think we can understand his master plan so
we’re just supposed to have faith. Greg is asking, is this how God shows
 Dismantling Sorrow 525

his love?” (Gurewitz 2004). In the same interview, Brett refers to the story
of Job, a righteous person who suffers: “No matter how good you are,
God will turn his back on you? This is the basis for Judeo-Christian
religion? Is it any surprise the world is so screwed up? They say that the
story of the Job is the saddest story ever told, so it seemed like the best
archetypal story to start a song called ‘Sorrow.’” And in another rational-
istic hermeneutical line: “My interpretation of the story of Job is that it
doesn’t matter how good you are, the universe doesn’t run on the merit
system. In other words it’s impossible to justify the suffering in the world
with the existence of a god.” 25 The point is that Brett, in the melancholy
of his verse and music and its rousing aspect, still stays faithful, a bit like
Job. The modus of this theodicy is waiting. It sucks for now, never was
any good, the ones we consider and feel good suffer, but maybe there is
an end to it; we should in the meanwhile not listen to theologian justifica-
tions of suffering but try to work against it. It’s a return to Svendsen’s
moral and political arena of work against evil according to minimal con-
sensus, excluding presidents who go to war to fight evil “for God’s love”
as well as those who execute others in the name of God, resembling “a
bloodthirsty curmudgeon” (Gurewitz 2004).
The second anti-theodicy that cannot escape from the genre it is paro-
dying is the one of irony, finding refuge in humor that soothes the suffer-
ing. Remember Desproges: you can joke about all things in good compa-
ny. Leszek Kołakowski, a recently deceased Polish philosopher who
wrote his thesis on Spinoza, is one who agrees with that. Although he
was, of course, a prominent philosopher of Marxism, he was, almost
needless to say, far from any dogmatic orthodoxy. The joke is on theodicy
in the story named Job, or the Contradictions of Virtue, coming from a
collection published in the second half of the 1950s, the one that I first
encountered in Croatian translation that brought together Key to Heaven
and Conversations with the Devil, the latter dating from the 1960s. 26 It goes
like this. Instead of a conventional prologue in heaven, we have a pro-
logue in the bar COCOFLI. 27 As later in the Danish black comedy In
China They Eat Dogs, the heavenly bureaucracy and its devilish counter-
part are flatly anthropocentric. They acquire all-too-human traits: Jeho-
vah, a straight-edge guy, drinks mineral water and Satan comes in with
style, ordering a cognac. He puffs cigar smoke into Jehovah’s face, red-
dish from anger. Jehovah is more frugal and speaks simply, while Satan
is a theoretically versed intellectual. Omnipotent but dimwitted, Jehovah
is easily caught up into a bet by means of child psychology, provoked by
Satan’s ironizing of his creation in the conversation with the barman:
Mind you, please, I am by no means criticizing the makeup of the
world. Nor I am investigating whether it was structured this way in-
tentionally or out of incompetence; I am merely noting a fact. Under
these circumstances only a negligible fraction of the mankind has a
526 Chapter 8

chance of arriving at your wonderful gardens and orchards. . . . Save

for a few exceptions, therefore, your people consist of the cowardly and
the sated. (Kolakowski 1989, 144)
Then the two make a known wager where, in spite of all the Satan’s
irony, God is victorious through the uncompromising posture of his ser-
vant Job. Job turns out to be totally faithful without any instrumentality
and thus, by God’s way of action—multiplying mischief, to achieve mo-
ral victory—which makes a place for virtue in the vale of soul-making, a
sense in the suffering is found. To be sure, Kolakowski’s God does not
care for theological scholastics. Moreover, he is utterly incapable of it. In
Satan’s ironic observation, God is not expected to understand theology
any more than a rock is expected to understand petrography. (Following
Pessoa, we should remember that the Devil’s default mode of speech is
irony.) Satan in the end accepts defeat as a gentleman but not without
relativizing it: he won Job’s nagging wife’s soul and is not sure if God has
cheated. He plays on Augustine’s interpretation of free will, calling it
ambiguous however, and evokes the Council of Trent’s decisions, specifi-
cally caput De iustificatione, doing nothing less than accusing God of pela-
gianism: if he has not helped at all, that means he acknowledges the
doctrine that negates original sin and God’s special grace necessary to be
good instead of evil. God doesn’t want to be a heretic but confesses to the
devil he is not too good at theology and all those disputes. He instead
points out that the devil helped in the other direction. The devil, leaving
Job’s soul to God because he has lot to do with the rest of humanity, does
not accept the interpretation because he sees himself as influencing envi-
ronmental conditions while God, in a platonistic manner we might say,
has a direct influence on souls, that is, has a direct channel for action
while the devil can influence souls only indirectly. (The devil, on the
other hand, struck me as more of an Aristotelian.)
Another Kołakowski’s story, one of Balaam’s donkey, further illus-
trates this funny theodicy consisting of a series of stories ranging from
Cain to Salome and John the Baptist. Balaam doesn’t know God’s inten-
tions and does not see the sword-yielding angel. Only the donkey does.
Balaam is then reasonably beating his jenny for refusing to take the emp-
ty road until God reveals himself to him, first through the mouth of the
speaking donkey and then the whole picture is revealed, putting Balaam
into submission (Num. 22:31). When questioned by heavenly agents, he
stutters how he did not see God’s angel with the sword seen by the
donkey, how everyone would have done the same, and so on. Balaam
finally understands that he is a victim of an objective sin (which is at odds
with subjective guilt); small, miserable, and sweaty, he continues the
same road on which he was stopped. Besides a short and powerful
“That’s life,” one of the ironic morals of the story entitled Balaam or the
Problem of Objective Guilt is: “It’s contrary to common sense to employ
 Dismantling Sorrow 527

common sense in a disputation with absolute sense” (Kolakowski 1989,

130). Here, humor speaks to theodicy.
And we can finally try to see a higher plan in suffering. While to laugh
is certainly a legitimization of a kind—the one who laughs usually
doesn’t do revolutions—accepting the world as a place of (dark) humor,
at the same time making fun of it and making sense of it, some try to see
more and tackle the problem in a different way. One of the familiar
tropes is a bit tantalizing, already present in the melancholic Bad Religion
moments in the form of hope of what is to come. It is a theodicy of
modesty and an incomprehensible God’s providence, which is an easy
genre to mock on tracks that Voltaire set long ago. I’ll provide one exam-
ple.
Nicolaus Cusanus, a fifteenth-century papal legate to German lands
and a cardinal, saw the world in its multiple forms as an explicatio, mean-
ing roughly its development and exposition. God, on the other hand, was
more of a complicatio, not mere convolutedness but absolute condensed
state in every miniscule part of the world and the whole. This is also a
theodicy, since God’s providence in Cusanus’s perspective is absolute
(providentia necessitas absoluta est), but every theodicy suffers from the
same problem as all other discursive forms trying to grasp the whole.
They are, in his trademark concept, as other forms of human knowledge,
a sort of learned ignorance (docta ignorantia), at best a helping hand in
mystical ascension. Although not devoid of modesty, this is more akin to
Wittgenstein’s mysticism than to basic Socratic skepticism, since the op-
eration is rationalist and discourse is used to augur the unutterable.
Knowledge, seeing universal harmony and God’s providence, is partial
and to be discarded—something like Tractatus in its more esoteric aspect
of the ladder that has to be thrown away after climbing. All possible
discursive but also worldly developments are an illustration of what we
cannot grasp in its fullness. Whatever is, is God’s providence; learning is
shallow and to be discarded, an illustration of what we cannot grasp
(vacationem in mentis visionem tendit), including truth, which is also God’s
only (see Cusanus 2007, §§69 and 90). 28
Neoplatonistic negative theology, an exercise in mystical pantheism,
erases evil out of existence. To feel redemption is to fight it, to laugh is to
accept destiny as the stoic who suffers with dignity, but there is, finally,
an attempt to accept it in a rational manner. I reflect a bit more on specific
interpretations of the Babel myth before connecting it with Job’s story
and making a point ending this section. Babel as difference can mean
something good, and not just division as punishment for hubris.
Thus for George Steiner, Babel becomes a parable, not about man’s
hubris and disarray in the world due to it but about the beauty of diver-
sity. His After Babel (1998), to do injustice to the rich tissue of erudite
reflection (yes, the kibitzing), presented translation as a paradigm for all
understanding. To anyone who has translated or spoken more than one
528 Chapter 8

language, the devil of translation is well known: languages are not a

commensurable set of synonyms obeying the same syntactical rules and
idiomatic expressions. Intertwined with different life-forms and tradi-
tions, they are untranslatable if one wants a perfect translation, which is
impossible for historical languages. Insular cultures, the consequence of
Babel, the ones that entrench, vilify, and fight, not only try to understand
each other but also produce evil in mutual relations. They concern the
authors who transpose the problem of evil to absolutization of one’s own
identity. For Steiner, they provide an opportunity for communication and
the beauty of life, for understanding across and over the differences. One
does not know one’s own language before he has learned other lan-
guages. Babel gave birth to Kafka, who was as a Mitteleuropeische Jew
haunted by many languages, and his penal colony is beautiful even if it,
beyond the issues of punishment, expresses despair over written words,
seeing in the “printing press an instrument of torture” (Steiner 1998, 68).
A practical and aesthetically convincing translation is not a child of mod-
ern science but of an art and craft falling in another Aristotelian compart-
ment of knowledge: while for Gadamer to understand was to share being
with a tradition, for Steiner it was to appropriate the other as far as it is
possible; to understand was to translate, to employ a hermeneutical art,
finding balance between beauty and trustworthiness. God dispersed the
world into many languages so that it might rejoice in coming together.
However, one view of Babel, that we have seen, is that of “punish-
ment,” an opening of Pandora’s box, an emerging chaos that haunts civil-
izations and that seeks explanation in the rich “mythology of the primal
scattering of languages” (Steiner 1998, 59), of which Babel is only a varia-
tion. The other is, as suggested earlier, a reversal of this disaster (Steiner
1998, 73). It is best summarized in Steiner’s collection of essays that offer
intellectual memoirs under the name Errata: An Examined life. It begins
with an anecdote about a probably Cusanus-like mystical feeling pro-
voked by a particular illustration of the richness of the world, obtained
by means of a lexicon of local heraldry, brought to Steiner by his uncle
Rudi from Salzburg. He read it as a boy in Tyrol, overwhelmed by de-
tailed differences, since “[e]ach coat of arms differed from every other”
(Steiner 1999, 2). Instead of various tragic dramas of the dissolution of
ontology through incomprehensible babble, putative tragedies of multi-
lingualism that make an ontologically homeless child of a language since
language is the home of being, and various social fractures due to paro-
chialism of incomprehension, Steiner decided to see a good thing in the
absence of an “Adamic esperanto,” a universal language “tautological in
respect of truth and the world” (Steiner 1999, 90). In the diversity he
chooses not to see danger but a richness of possibilities: “We speak
worlds. Thus Babel was contrary of a curse” (Steiner 1999, 99). We are the
children of Babel.
 Dismantling Sorrow 529

Bell, drawing on Ricoeur, offered a very useful development of the

motif explored in Steiner. In a journal article that combines close reading
and scholarly references providing a rich context, he uses the story of
Babel to demonstrate the application of a general method of an interpre-
tive ark. It is a commonsense description of phases of understanding
from a preview to an owning of the matter. Applying it to the problem of
Babel, Bell manages to arrive at an opposite reading to the one explored
by Bad Religion, which he describes as follows:
A “commonsense” proto-understanding based on a first reading—at
least by a white Western middle-class male like me, reared in the pre-
vailing cultural interpretation of Babel—makes the story look like a
polemic against overweening human ambition, possibly even against
urbanism, certainly against mortals trying to “make a name for our-
selves” and to preserve it in concrete, trying to reach heaven and act
like God. God comes across as a somewhat peevish local deity, afraid
of being outshone by a group of ambitious humans, and taking steps to
mess them up so massively that they will never again be a challenge.
(Bell 2011, 533)
In other words, at first, it is a story of punishment we all know: an
allegory of both prideful and miserable human condition in this world, a
conventional narrative that “these people were attempting to challenge
God by building their tower, and they were accordingly punished for
their pride and rebellion (Greek hubris resulting in nemesis)” (Bell 2011,
547). But when put in context of a command issued after a general flood,
for people to spread and populate the earth with the help of some herme-
neutical pyrotechnics, things start to look different. Like some Italian and
Croatian teenagers in their thirties living with their parents, who cannot
throw them out, giving rise to a specific comedy genre, God’s peoples
stay in one place stubbornly: “Their building activity took no regard for
the intention and needs of the wider creation or even for their fellow
humans” (Bell 2011, 549). Singular language is a hindrance. Diversity is
not a danger but the means to procreation and proliferation. Babel is the
bliss of multilingualism. Multilingualism becomes a blessing instead of a
curse, and we became enriched by a new reading with a touch of political
correctness, attacking the insularities of today’s empires and pointing to
the tragic ironies of their crumbling ziggurats. Babel becomes a tower of
postmodernism of difference, today “interpretable as a polemic against
empire—that centripetal human undertaking that seeks to enforce mono-
culturalism, monolingualism, unity and unanimity” (Bell 2011, 554).
The link between the two stories in conventional reading is simple
within the genre of theodicy. A gate toward God becomes confusion and
hubris punished through dispersal, misunderstanding, and all the suffer-
ing coming from it. The moral of the Book of Job is the same: be modest
and have faith in the face of evil, empirically illustrated by the first sec-
530 Chapter 8

tion of this chapter and theorized by the second. Accept the incompre-
hensible world with suffering if you don’t want to make it worse. 29 In
this alternative reading—I am, once again, not interested in the herme-
neutic accuracy and authentic interpretation but in the proliferation of
useful motifs for my own discussion—taken as a metaphor for theodicy,
we might see a rationalization of suffering. Displacement of people, great
tribulations venerated by Marley—suffering is part of plan that is good. It
is similar to Job who, in the saddest of stories, gains something good. A
redemptive reading would try to change the world or hope for some
proof from the human perspective on grace, some kind of Descensus
Christi ad Inferos where those suffering are saved. Kołakowski would re-
mind us that we should ask the Egyptians: maybe the pharaoh had it
coming by keeping the chosen people in slavery, but all the ills and
destruction seem to beg the question of perspective in these matters of
justification of suffering. Existit ordo ergo ordinator? On the contrary, there
is no order, or no order enough to prevent serious suffering, therefore no
God, or no just God or, as Nick Cave would put it, no benevolent “inter-
ventionist God.” Theodicies, as ontological proofs, are given a bad name
as devoid of practical consequences. 30 This is true, in a sense, but any of
the presented theories of evil and theodicies, whatever their truth value,
seem to provide a platform for practical action in the “moral and political
arena.” It is another quagmire, returning to other chapters on violence
and punishment for evil and of evil, depending on the perspective. A
surrogate of the conclusion instead dwells a bit more on suffering and
innocence.

METAPHYSICAL GUILT, GRAMS OF EVIL, AND SECONDS OF

INNOCENCE

Horror may to an extent dissolve in explanation, development, or evapo-

rate as a shock in the eye of the beholder. Brutality, as the history of
violence teaches us, may erase our sensitive moralities, lowering the
threshold of violence and acceptable punishments, as often happens in
the state of exception. Development, on the other hand, may make us
more able to see violence where it was not before and demand new forms
of punishment. Rational policy may be enacted for the common good in a
polity, punitive or not (I shall not be a pretentious judge of that at the
very end). Suffice it to say, however, that everything I know from my
experience as a teacher and a parent says to me that, at least for certain
human subjects, restrictions and sanctions are necessary alongside posi-
tive education, inducements, understanding, play, and talk, until a re-
sponsible person is built, consciously working on himself or herself. But
this is—I admit as a skeptic who did some multifarious mapping, inter-
preting, analyzing, and probing in front of the reader—an individual
 Dismantling Sorrow 531

story in a given space, time, and society, no matter how large an audience
right now or in the future to whom it may sound truthful or at least
reasonable. New social realities, biological developments, opening tech-
nologies, and closing opportunities appear in the world of flux: it may all
change, as it did in history where scaffolds were assembled to punish and
expiate the transgressions before the sovereign. Discourses constructing
opposing ontologies, anecdotes, and croquis as well as lessons from com-
parative politics, history, social science, criminology, religion, and even
fiction may offer some clues on the why and how of punishment as a
form of more or less rational violence—or more modestly, violence with a
cultural meaning and a legitimization pretense. The point of this book
was to map and analyze some discourses on these matters. The reader
should combine them, juxtapose them, merge them, falsify them, play
their bits and pieces one against the other, glue them together, see
through them, or shatter them. Various chapters offered these perspec-
tives about violence and punishment to be played with, mutually chal-
lenged, or together contemplated in the sublime tradition of metaphysi-
cal holism.
It is a bit like in Quine’s classical critique of the two dogmas of empiri-
cism, where the practical distinction of analytic and synthetic is shaken:
the distinction between politics and policy is relativized and the policy of
punishment is ultimately absorbed by its politics, as the pure analyticity
of the unpolitical policy disappears under closer inspection. As in the
critique of the pragmatic theory of speech acts busied with charting of the
successful utterances with some natural bias toward accepted forms and
institutions, where a critique by the sociology of power appears to amend
it. Politics is a wider game. If the wide use of the language of punishment
is not only metaphorical but political, then the phenomenon can simply
be defined. I am not speaking of violence that was stretched and nar-
rowed ad nauseam in these games. I am speaking of punishment as a
specific instrumental form that perhaps too often passes unnoticed in
these operations.
Punishment is an authority claim—a type of violence among others, a
penal agency pertaining to normative justification of a violence infliction.
After this conceptual work is done, the discourses are charted, with all
their intricacies, explanations, hermeneutics, wonders, emotions, pre-
scriptions, and norms. When the game is over, however, God appears
silent again. For example, there is only the serene work of power and
thus: Spinoza. Or one might exclaim yet another name, risking another
simplification and misunderstanding, such as Darwin or Conrad. Or,
after all, invoke the already invoked Alien marketing punch line, apply-
ing it to the silent and still unfolding history of violence, punishment, and
pain. That is the central, if somewhat mystical, point of this baroque
book.
532 Chapter 8

As for theodicy, it may search for sense in the world as we have

known it and as it was presented to us in the chaos of Babel and through
the suffering of Job, calling for discourse analysis and the search for the
meaning in suffering. We may accept the pain and find energy in the
feeling of redemption as in another beautiful Bob Marley song. We may
find solace in irony, or simply try to rationalize individual and collective
suffering as a higher plan, listening to Voltaire’s enlightened laughter
falling on this, undoubtedly the best of the best imaginable worlds as
explained by his omniscient Professor Pangloss, while humbly attending
our garden. We may also feel that there is about as much as the famous
twenty-one grams of evil at least in some souls, a quantity that remains
after all the explanations have marauded the scene. Or, after all, to ex-
plain is not to reconcile with the world. Explanation, as any other logic, is
neither good nor bad, and does not make things less gruesome or anti-
quarian. To refuse it in some cases is perhaps wise and a useful figure of
speech, thus a noble lie at best, whatever the horror. And whatever the
conclusion, it is not up to me to force it on the reader, who might after all
conclude that there is no “we,” often too easily tossed here in the anti-
quarian manner of the preachers-and-pulpits genre (a benign nosism of
pluralis modestiae I could rationalize: oh, reader, are you following me,
buying into my politics?); that there is no higher sense in this ongoing
story, and that a lot of nonsense has been said because some vague feel-
ing of justice was projected by the author from a particular cultural
standpoint on some limited and arbitrary picture of the whole, for some
reason highlighting these things called violence and punishment. Fair
enough, and I might leave it at that, but anything short of at least two
anecdotes would disappoint any reader of this book who has endured up
to this point. One is more philosophical in nature, involving some titans
of thought, while the other is more sentimental in character.
Karl Jaspers, a German psychiatrist and existential philosopher, was a
mentor, colleague, and friend of Hannah Arendt. Unlike her fatal and
stormy relationship with Heidegger, the one with Jaspers was more akin
to the relationship between father and daughter, producing more than
forty years of interesting dialogue, including their voluminous preserved
correspondence. Jaspers shared an interest in the problem of evil with
Arendt, but unlike its bureaucratic banality, his philosophy, expressed in
a historical lecture, assumed a form of unexpressed theodicy. 31 It is not
their shared interest in St. Augustine, on whom Hannah Arendt wrote
her dissertation under Jaspers’s mentorship, that is at stake here; the
theme was a concept of love, not the evil that Augustine found in his
rotten heart of insatiable lust and pear stealing out of pure malice that
was erased in a moment of metanoia during the grace-lead scripture
reading. It is the question of guilt Jaspers explored. Although in his earli-
er days he was more enthusiastic about the Deutsches Wesen, reflexively
fostering a certain ontology of particular people (see the earlier discus-
 Dismantling Sorrow 533

sion in this chapter), as events progressed he became quickly disen-

chanted with it, perhaps reducing the German being to the more flat
media of culture and language. Thus the early and widespread exhibits
of a mild Völkische Denken gave way to Die Schuldfrage, an examination of
German guilt by the untainted German moral authority who had to, with
the rest of glorious nation of Goethe and Beethoven, in the language of
transitional justice, deal with the past.
In his short and powerful lectures that were in translation national-
ized as the question of German guilt (Jaspers 2001), Jaspers distinguished
levels of responsibility that help one deal with the past, but we might say
also with the world in categories of guilt, or less emotionally, of respon-
sibility (if not bureaucratically, of “accountability”). While it is a German
historical moment, and his lecture is accordingly addressed to people in a
special situation, the story is in fact as general as its gets. There is legal or
criminal responsibility, political responsibility, moral responsibility, and
metaphysical responsibility, and each should be kept analytically distinct
from the others. The first is a simple creature obeying the usual liberal
mantra of individual personal responsibility and a tenet of occidental
penal law as proclaimed by the states. Those who have committed crime
are responsible as individuals. Let us now be silent on the question if they
could have done otherwise and if this but ex post facto rationalization that
picks convenient scapegoats. Whether it is nullum crimen sine lege, nulla
poena sine lege (individual autonomy to obey or disobey the law pro-
claimed) is a founding fiction of the penal law (ironically suspended by
various discourses that help the law in its operations).
Jaspers solves this problem with the second layer in a tidy scheme:
political responsibility is the one of the community making choices as a
collective. Individuals are perhaps not penally responsible but they have
brought someone to power, accepted it, and legitimized it actively or
passively, by not obstructing it. Wars are sometimes waged by mad ty-
rants but more often by people in a complex relationship with their lead-
ership. The instance of punishment is not penal law but political result,
consequences felt on the whole of the political collective. Moral respon-
sibility interpellates those who feel and know they could have done oth-
erwise. It is not that they did some criminal misdeed according to some
law or that they suffer or not the political consequences as a people. The
punishing instance here is the guilty conscience within the moral dis-
course. Why did not I do anything? Why did I not act to help a person or
more of them who needed help? It is the question that probably (or hope-
fully) haunted at least some of our earlier described insensitive bus pas-
sengers even if, as in the famous poetic statement offered by the pastor
Niemöller, nobody came to the aid of the one who was left alone, but
guilty conscience.
But what if I, successfully caught in this discourse, pass the tests thus
far? What if I have not done a legal misdeed, if I acted politically as one
534 Chapter 8

should, and morally in each and every instance that I could have done
anything, but I still face the suffering and bad results somewhere in the
world? This is, for Jaspers, called metaphysical guilt. As a piece of lucid
sophomoric critique has it, the concept “can too easily be used as a politi-
cal tool by people to extort benefits from others or avoid accepting per-
sonal responsibility” but, acknowledging that “Jaspers himself acknowl-
edges that jurisdiction over metaphysical guilt lies with God alone,” we
can accept that “it reminds us of the subtle ways in which our lives are
entangled—and how we may unknowingly (and sometimes knowingly)
profit from the sufferings of others” (Samson 1977). If we polish that with
some more pathos and idealism, Jaspers’s idea is that, by grasping, we
are sometimes powerless before the suffering in the world, we transform
ourselves. The instance is the existential horror of life that gives birth to
the general sensitivity for other human beings or all living beings who
suffer and feel pain amid the world’s violence. The exact opposite of this
idea is illustrated by Agamben’s Remnants of Auschwitz (1999). Camp is
there not the machine of power and punishment of our second chapter
but a place of emotional and moral horror amid the mass destruction of
humans in a modern society. Primo Levi is one of the haunting voices of
this far-reaching metaphysical guilt, as are Améry, Borowski, Kertézs,
and many others, each in his own way.
“Preferably the worst survived, the selfish, the violent, the insensitive,
the collaborators of the ‘gray zone,’ the spies”: Levi found out in practice
how Bulgakov’s ray works, and what it means that “each man is his
brother’s Cain” (Levi 1989, 59–60). What happened was worse than shar-
ing a “bed with a corpse,” which our gambler who killed his partner did
without direct coercion from the outside. It was the complete degrada-
tion of human dignity and morality. The following sentence—colonialis-
tic metaphor put aside—expresses the idea of metaphysical guilt most
succinctly: “Whoever waits for his neighbor to die in order to take his
piece of bread is, albeit guiltless, further from the model of thinking man
than the most primitive pigmy or the most vicious sadist” (Levi 1996,
171–72). Until the day sorrow is dismantled—not in explanation, humor,
or rationalization, but for real—this altruistic feeling, systematically de-
stroyed in some situations, might make us better. Together with some
humor and some responsibility, it will make us stand and reflect on the
senselessness of much violence and the purposefulness of much punish-
ment.
The second anecdote refers to a 1990s popular pop song sang in three
languages: in addition to the English refrain, these are French and intro-
ductory West African Wolof. It is performed by Youssou N’Dour and
Neneh Cherry. It offers beautiful music and black-and-white video, but
also conveys an interesting message: “Cherry and N’Dour wrote ‘7 Sec-
onds,’ the title referring to the first moments of a child’s life, as Cherry
put it, ‘not knowing about the problems and violence in our world’”
 Dismantling Sorrow 535

(Webb 2011). This is a restatement of the English verses from the song’s
lyrics, which say when “a child is born into this world, it has no concept
of the tone the skin is living.” The statement is paralleled with emotional
Wolof and French parts on how hard it is to forget differences and push
for change. As I am writing these closing lines, migrants and refugees en
masse arrive in Europe among the discursive battles, logistical chaos,
walls, wires, and detention camps as in some Agambenian nightmare,
without law, clear policy, or concerted collective political action paired
with popular legitimacy. The immediate causes are related to one of the
croquis from the introduction written earlier, appearing in the context of
incessant Middle East political violence, and with some facts of the glo-
balized political economy and communications. It may resonate as a hol-
low phrase, but the situation fits the historically recognizable categories
and scenarios: the dynamics of politics and media oscillate from destruc-
tive to chaotic. A humanist pose gives way to cloture, there is neither
vision nor rationality, as the old continent faces a continuous influx of
people from the east and the south. Hot spots, or the camps with masses
of hominess sacri, a heterogeneous population of incomers, appear le long
de la route, in places where there is either the strength to say no to mass
illegal immigration or the genuine democratic will to accept and inte-
grate. International relations, wars, demography, and economy, spawn
new movements of people neither included nor excluded, with the sword
of punishment looming above. Law and politics are silent in the shadow
of bureaucracy, petty pragmatism, and bickering between neighbors
lacking a common policy. The numbers are large; some of those lucky
enough to have a name engage in violent crime or a terrorist act, perform-
ing a counter-punishment. The nameless die in the sea or suffocate in the
smugglers’ trucks driving them to the mythical West, which is no more.
In other words, is this the time to be moved by sentimental pop music
paired with a simplified discourse of a presidential campaign? I’ve seen
much more in this song. It is not only a critique of racism as a source of
divisions and violence, it is also more generally a song about innocence
lost. A child hardly has any concepts, is not a subject yet. It is a song
about lost childhood. I don’t know if I see these additional reflections
because I was born in one of the regimes that—as far as I was young
enough and not (related to) a political opponent of the regime—to a
certain extent, and after all rational economic critiques, still earned the
utopian label of “socialism with a human face,” or if it was simply for
being a kid, coming to consciousness in a complete and more or less
functional nuclear family. Whatever the reason, as far as I can remember,
growing up in my early days, I seem to have had a vague feeling that the
order is there and that you just have to do your duty as a part of that
order. Even if it was all a sham, a well-ordered society stood before my
childish eyes, solid as a rock: the one where teachers teach, workers work
in a factory, people travel and return home, and so on. Later, I cannot
536 Chapter 8

exactly tell when, I gradually realized that things are much more contin-
gent and chaotic outside of the safety bubbles of my childhood. Things I
had taken for granted were maybe a middle-class illusion, an ideological
content of my well-structured coming of age. Albeit injury, death, and all
the bad things that can happen, of which every child learns pretty quick-
ly, there was dinner and bed at the end of the day, parents and grandpar-
ents, friends, school, dreams, a future.
Not only because of the transition and war, which I experienced and
later wrote about, but also because of simply growing up, this picture
changed. Times and societies move also, I gathered. Grand inertias can
reverse, civilizations rise and fall, and in a quite short time span of sever-
al or even fewer decades, societies change. I learned that seven seconds
are nothing; to dream about them is to know they are illusion. The baby
born into a sewer does not know that but attests to that, as does the baby
killed by an ashtray to the back of her head. Yes, the extremes are bad,
and there is no firm ground as there is no innocence, but there is some
hope, pale and flattened as the baby rescued from the sewage pipe, a
piece of human Play-Doh cut out of it like a smallest matroyshka doll. My
hope is that a detail or perspective from these pages will help someone
find some solace, hear a meaningful voice in the chaos of co-suffering in
violence and punishment, to cut a pipe and breathe the air of life into the
world of Jaspers’s metaphysical guilt and the spiders of Spinoza devour-
ing each other as they listen to the philosopher’s laughter. 32

NOTES

1. “Is it in me simply so that I should deserve the punishment I suffer? . . . Where,

then, is evil: where does it come from and how did it creep in? What is its root, its
seed? Or does it not exist at all?” (Augustine 2001, 118, 119–20). The English transla-
tion of the first sentence adds some prior context to the simpler Latin question. For the
source of the original Latin text, see Augustine (1912, 342, 248).
2. “God’s right is nothing other than God’s power” (Spinoza 2002, 683). Spinoza
operates with two terms that translate as power in English. Power residing in the
nature of things is potentia, while political power coming from people joining in the
social contract is potestas. For the source of the original Latin text, see Spinoza (1844,
54).
3. The first number refers to the traditional annotation of the Corpus Aristotelicum,
while the second one refers to the page in the cited edition of The Metaphysics.
4. Theology is put into scare quotes because it is not meant as a canonical disci-
pline, for example as in the syntagma “Calvinist theology.” I am not pursuing any
kind of scholastic theodicy within a religious theological tradition. Comparative poli-
tics is presented very roughly in terms of research designs and state of the art of the
discipline which are important but do not affect the elementary classification of a
discourse. As for the examples in the social science column, at least some philosophi-
cal ideas are capable of producing testable hypotheses.
5. Methodologically, it is, as the reader will quickly notice, no archival work, con-
sulting official stories or doing interviews or some kind of case ethnography or
ground research myself. For the purposes of this book, I mostly settled for combina-
tions of several news reports and various Internet open sources. Following Goffman’s
 Dismantling Sorrow 537

Frame Analysis, I did not abstain from tabloids as an important source of juicy material
and treasury of peculiar discourses, even if often loaded with sensationalist interpreta-
tion and meager on precise factual data. That said, the relevant factual basis of all the
cases is, I believe, true in the common sense associated with the word—that is, that the
personages existed and that the gruesome events took place more or less as they are
described, with the “evil” aspect of our central interest beyond doubt, even if particu-
lar aspects of the story may contain confabulation, imprecisions, heavy distortions, or
fictional elements.
6. An anonymous journalist speaks about Manson’s manipulative behavior; she
wanted a video interview, which is not allowed and Manson knew that, but it is
explicitly stated that she conducted the interview live in Corcoran prison—that is, she
“spoke” (razgovarala) to Manson. Manson’s site, however, states that questions were
submitted in January 2013, implying a written correspondence. Some of the interview
that also seems like authentic Manson does not appear in a shorter, perhaps edited,
version on Manson’s site.
7. All the quoted excerpts are translated from Croatian back to English, except the
“life is a game your mother plays” bit, which appears in the digest at Manson’s
website.
8. If there is an ontology of misogyny explicitly expressed, Elliot Rodger offers
one, going much further than the convoluted artism of parts of Lars von Trier’s The
Antichrist (not necessarily taken as the artist’s position): “Women should not have the
right to choose who to mate and breed with. That decision should be made for them
by rational men of intelligence. . . . Women have more power in human society than
they deserve, all because of sex. There is no creature more evil and depraved than the
human female. . . . Women are like a plague. They don’t deserve to have any rights.
Their wickedness must be contained in order prevent future generations from falling
to degeneracy. Women are vicious, evil, barbaric animals, and they need to be treated
as such” (Rodger 2014). Ontology strikes one here as a function of the reverse psychol-
ogy of rejection: “All I ever wanted was to love women, and in turn to be loved by
them back. Their behavior towards me has only earned my hatred, and rightfully so! I
am the true victim in all of this. I am the good guy” (Rodger 2014).
9. In terms of body count, Rodger didn’t manage to realize his plan to reach simi-
lar historical precedents of mass killers, explaining their sprees in the manner of the
famous parricide Pierre Rivière. In comparison to the seven casualties of the Isla Vista
killing, more than seventy years earlier, the Tsuyama massacre on the other side of the
Pacific counted thirty victims. Their motives were not that different; sexually deprived
twenty-one-year-old Mutsuo Toi, suffering from tuberculosis, set on his killing spree
in Japan’s countryside, with the help of a Browning shotgun and some cold weaponry,
starting with his grandma to spare her of the later stigmatized existence.
10. See Hanna (2016) for a recapitulation of the case and the factual basis of the
here-presented short narrative. The case is still pending as the proofs of the book are
corrected. Couch, who turned 20 in 2017, is scheduled for release in 2018 after several
unsuccessful motions filed by his lawyers to get him out of jail earlier (Tsiaperas 2017).
11. Individual cases offer an opportunity for catexis, an emotional investment of
role-playing, compassion, fear, and cosuffering, as do the human interest stories from
the newspapers. But rationally speaking, singular tragedies are bleak toward the big
political machines on their march of folly, be it banal or demonic or something in
between. In this context, it is not Solzhenitsyn’s Russia, but again China offers an
example. Horror of the one-child policies and its capillary penal apparatus of forced
abortions, sterilizations, gender infanticides, “confiscation” of surplus children by the
state—all in all, it is a literally democidal policy sanctioning a quite old and natural
impulse to have and bear children. There is a whole world of tragic stories of violence
and punishment lurking there and being abstractly tragic from the perspective of a
native of the country with a low birth rate for various historical, economic, political,
and cultural reasons, perhaps less gruesome but in the final outcome not less tragic
than the self-destructive policy adopted in the late 1970s China to be abandoned after
538 Chapter 8

thirty years of violence and punishment, also giving wider context to the one of the
happy ending episodes of a baby rescued from a sewage pipe.
12. The cited source of the one of the three English translations of Les Phares listed
on Fleurs du mal website is Aggeler (1954).
13. Existit ordo, ergo ordinator (supremus).
14. The line is taken from a Bad Religion song explained in the next section.
15. Experts interviewed on the question do not settle for an allegorical interpreta-
tion: “The Cretaceous world wasn’t one of right and wrong, good and evil. There was
only nature, and nature was indifferent to such concepts of morality” (Brian Switek,
quoted in Wickman 2012). Or, as Peppa’s brother George Pig would utter: “Dinosaur.”
16. The French quote is from 1595 edition (Montaigne 2001, 410) where the essay is
the fortieth (XL) in the first book. The translation, making the sentence a bit softer, is
from the English edition relying basically on the 1588 copy, and the essay is the
fourteenth (XIV) in the first book (Montaigne 2003, 50). I stick to this edition and
numbering throughout the following few passages in the text. Another English trans-
lation has it this way: “I myself have lost two or three children, not without grief but
without brooding over it; but they were still only infants” (Montaigne 1993, 64).
17. The final count was actually six. Only one of Montaigne’s children survived
infancy, a beloved daughter bearing the name that few centuries later inspired Poe.
18. See Hölderlin (1976, 174–79) for further ambivalences of the original fragment.
19. The Stimmung of quasi-pagan mystical collectivism of Hitler’s era, associated
with “elemental evil” in the 1990s postscript of the cited essay, is at odds with liberal-
ism. Critchley explains this in simpler terms: “Idealism and liberalism equals France;
facticity, being rooted to oneself, and the body, equals Germany” (Critchley 2015, 34).
20. A “world of ever-rising demands” is not only evil for Illich but equal to “Hell”
with a big “H” (Illich 1971, chap. 7).
21. Kant also cites, albeit from reasonable distance, the eighteenth-century poem On
the Origin of Evil (Über den Ursprung des Übels) written by Albrecht von Haller (1734), a
Swiss polymath who also wrote classicist metaphysical poetry. Although some fresher
ideas of perversion of natural instincts appear, the poem doesn’t stray far away from
the motif of original sin, citing little resistance to evil’s power of “Adam’s weak chil-
dren” (Das Übel, dessen Macht den Himmel konnte mindern,/Fund wenig Widerstand bei
Adams schwachen Kindern).
22. On peut rire de tout, mais pas avec tout le monde.
23. The quote, a common one citing currency appearing in various places, including
Hume, is apocryphal. It is traced back to Lactantius’s De Ira Dei, an early fourth-
century writing of the Church father here quoted from the English translation of the
sixteenth-century issue of his collected works available at Google Books (Lactantius
1536, 494) and linked to the “Disputed” section of Epicurus’s Wikiquotes, where the
English translation appears. In any case, nothing in it is at odds with what is known of
Epicurus’s worldview.
24. After the publisher has informed me that due to the copyright strictures I do not
have the right to reproduce more than three lines per poem even in an academic
treatise such as this, I sent two e-mails: one to the publicly available address of Greg
Graffin (@ Bad Religion) and, few days later, the other to the one of Brett Gurewitz (@
Epitaph), humbly seeking a permission to reproduce the interpreted lyrics, presenting
myself both as a former fan and an academic. Unfortunately, they did not respond by
the time I sent the revised manuscript back to the publisher and, at the time of writing
this, I cannot claim that the messages have even come to their attention. For that
reason, I lack the information on their opinion on this piece of interpretation and I can
only reproduce three lines of both songs narrating in my voice about the rest. (Luckily,
most of the contemporary readers going through these lines can switch to audio and
consult the poignant originals on YouTube.)
25. The quote of Gurewitz is in the comments on Kingdom of God Media (2008).
26. The second collection includes a stenograph from the devil’s metaphysical press
conference held in Warsaw on December 20, 1963, where he expectedly claims that he
 Dismantling Sorrow 539

is not only a loquendi modus, façon de parler, and that, furthermore, evil is nothing
pathetic either: the word that precisely corresponds to the object, analogously to the
words such as “rock” or “cloud.” See Kolakowski (1972).
27. COCOFLI is an acronym for Coexistence—Cooperation—Friendship—Love—
Identity, referring to the complex layers of relationships between the two otherworld-
ly protagonists of the story fighting over Job’s soul.
28. See Cusa (1985) for the English edition. The Latin is taken from the bilingual
Croatian edition (Cusanus 2007).
29. There is, however, a subtle difference noticed by James in his early nineteenth-
century The Varieties of Religious Experience lectures, between agreeing with the scheme,
as in Job’s cry of love, instead of agreeing to it, without exultations, as in the generally
colder stoical discourse exemplified by Marcus Aurelius. James sees it as a difference
“between an arctic climate and the tropics” (James 1999, 44). A similar thought ap-
pears earlier in Pascal’s aphorism about a large distance between knowing God and
loving him (Qu’il y a loin de la connaissance de Dieu à l’aimer).
30. I cannot nor would I like to offer an ontological proof of God’s existence, vague-
ly understood as some kind of (in)tangible supreme entity presiding over the world,
time, and history, but on the basis of this treatise, especially this chapter, I can at least
offer an ironical definition of Her in a footnote. She is the confusion of Babel, with the
cruelty of Job and the mercy of Jonah. Although a Spinosistic scholium will have to be
omitted—not least because the immanence of the whole goes beyond analytical dissec-
tion, as power seems to eschew a saccharine point of view of subjective morality—the
minimal elaboration is the following: after setting the table in a chaotic manner, some-
times She assumes the pose of a bad cop and sometimes of a good cop, while all the
time She plays a role of an efficient emotional abuser because She makes you love Her
and hate Her at the same time, but certainly you depend on Her all the time since once
you get to know Her you also know you cannot live without Her because life without
Her has no sense. If this sounds blasphemous, read against the religious layers of the
interplay between a somewhat stern father and a merciful son in McCarthy’s novel,
against all odds bringing hope to an “intestate earth”—even if they eclectically face a
“threadbare buddha, staring into the coals” (McCarthy 2010, 179), played by Duvall in
the film—and even if it beats the campiness of Bloom’s gendered God identified with
irony, an “irony of mere maleness” (Bloom 1991, 182), amply caught by his witty
female biographer; at least She is not Alanis Morissette.
31. There is one more character whose story has to be closed, warranting a penulti-
mate endnote reflecting on evil’s banality. One of the official versions is well known:
instead of theshuvah, the repentance and will to change, he stood firmly in his bureau-
cratic Amtssprache, which, according to Arendt, showed his inability to think, while we
left him in a cozier atmosphere, leading nice conversations with the roast and the
furies. I choose to approach Eichmann through two peculiar characters, one historical
and one fictional. Steadily approaching his nineties, Claude Lanzmann composed yet
another documentary from his Shoah-related interview materials, in a recognizable
style of oral history juxtaposed with the cadres of the mundane locations of the
present that in the past witnessed extreme violence. In the 2013 film The Last of the
Unjust, he interviewed Benjamin Murmelstein, a controversial governor of the There-
sienstadt ghetto used for Nazi propaganda, who is seen either as a Schindler-type
manager doing the best he could in extreme circumstances or a Nazi collaborator who
should have hanged together with his masters. As one of the so-called Judenälteste,
placed between the Jewish communities and the Nazi regime applying the final solu-
tion at different speeds, Murmelstein at the same time sees himself as an official fool, a
marionette sometimes pulling its own strings, Scheherazade telling stories to stay alive
another night and, most memorably, as Sancho Panza, a pragmatic down-to-earth
character with no ear whatsoever for lofty idealism. With jovial flare, Murmelstein,
interviewed in the 1970s in Rome, describes how he collaborated with Eichmann al-
ready in his post-Anschluss days in Vienna where the latter gentleman, aside from
learning about migration, waved his gun and demolished the synagogue on Novem-
540 Chapter 8

ber 10, 1938, with the help of a typically abstract German verbal coinage, a Schlageisen
(“beating iron”) or, simply, a metal wedge. Murmelstein, who had not been judged as
trustworthy, useful, or a politically appropriate witness for the Eichmann trial by the
Israeli government, would have reasons to accept the idea of banality of evil to excul-
pate himself together with the Obersturmbannführer posing as a naive bureaucrat. He
portrays Eichmann as a corrupt, cunning, and sometimes brutal Nazi careerist who
extracted money from the Jews back when emigration was employed to get rid of the
population disenfranchised by the official racist policies. Murmelstein explicitly enters
into a polemic with “Madam Arendt” (and “Gerhard” Scholem, who mentioned him
in the context of hanging). Note, first, that Murmelstein’s account may trump the
theory as a valid description of a specific empirical case—of Eichmann—but not banal-
ity or stupidity of evil as such for which evidence does not lack already within pages
of this book and this very chapter. To begin with, Murmelstein could have been said to
corroborate it himself, in his refusing to see the consequences of his work as a strict
Nazi employed bureaucrat. Second, in a bizarre way, this real character is reminiscent
of a fictive one, of another nation and gender, perhaps metaphorical, and certainly
interesting and controversial. Bernhard Schlink’s The Reader—Der Vorleser in the Ger-
man original, translatable as Čitač in Croatian (the one who reads loud), instead of
čitatelj (the one who simply reads for himself)—was made into 2008 Hollywood film,
where enacting of this character won an Oscar for best female performance for Kate
Winslet. Hanna Schmitz, a seductive, illiterate, concentration camp guard who became
a tram conductor after the war, is finally tried for war crimes. Rather than admitting
illiteracy, which could have saved her, she accepts the responsibility and life sentence
for the war crime of not allowing Jewish women to escape a church that had caught
fire in the Allied bombing. Causing consternation, she asks the judge, “What would
you have done?” She obeyed the rules in the factory before the war and in the camp
where she was assigned during the war, not recognizing humanity—the women who
could have escaped—as the object of her duty but only possible disarray to be stopped
at all costs. When the Theresienstadt ghetto Verschönerung for Nazi propaganda is put
in the context of dead children and elderly, executions and trains for Auschwitz,
Murmelstein describes himself as a surgeon who has to keep his cool to save lives.
32. Jaspers and Arendt discussed Spinoza playing with flies and spiders. In
Borges’s poem, Spinoza’s delicate hands hone crystal in silence, outside of metaphor
and myth, blessed by a prodigious love of no hope of being loved in yet another take
on the philosopher, pale and with saddened eyes (see Borges 2000, 228–29). In an
anecdote taken from Spinoza’s early biography written by Colerus, which Jaspers
recounts in correspondence with Arendt (Arendt and Jaspers 1992, 138–42), traslúcidas
manos del judío are set in an unexpected arena for primitive animals, one of his seem-
ingly rare pleasures besides smoking a pipe of tobacco. Jaspers sees in him, beneath
the gimmicks of proofs and more geometrico formalities, “a man who, without self-
deception, knew God” (Arendt and Jaspers 1992, 139), agreeing with the following
statement (although he is not sure if it was Renan or some Jesuit who said it): “No one
after Jesus has been nearer to God than Spinoza” (Arendt and Jaspers 1992, 140). The
only instance where Spinoza’s laughter is mentioned is the anecdote about his custom
to add more spiders to the web with flies and then burst out laughing as the creatures
were fighting. To the further bewilderment of an unprepared reader, expecting saintly
bloodless philosophers to restrain themselves at all ages from such childish wanton-
ness, Jaspers as a boy performed even more complex experiments in the same genre,
adding flies, spiders, and larger spiders to the cobweb, but unlike the elderly Spinoza,
reacted with less enthusiasm: “But I didn’t laugh. I was anxious to see what would
happen, to be horrified. And then once I had seen, I stopped doing it entirely. It was
confirmation of basic reality (the Indians call it ‘the law of fishes’). Spinoza surely felt
no empathy here. He gave his attention and his soul to the search for Being; he
founded it, and achieved tranquility as Parmenides did” (Arendt and Jaspers 1992,
140). Arendt, who was before unfamiliar with the anecdote, and still distrustful to-
ward her excommunicated fellow national, thought Spinoza created “a microcosm”
 Dismantling Sorrow 541

(Arendt and Jaspers 1992, 141), not a simple experiment probing the behavior of spi-
ders but some kind of simple recreation of the universe on a smaller scale. Unfortu-
nately, she does not develop the theme and starts badmouthing Heidegger’s lack of
character, a person whose recent correspondence with him Jaspers just promised to
show, in a kind of a dark fascination for the fallen thinker that still captivated both,
mocking his obscure pretentiousness to write Being with a “y” (Seyn instead of usual
German Sein). But I am digressing, once again and for the last time: the important
question does not concern Heidegger but Spinoza. “How, then, are we to explain
Spinoza’s apparent cruelty, even sadism towards spiders and flies?” asks Berman
(1982, 202), with blissful naïveté, putting the whole of theodicy into one sentence.
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 Index

7 Seconds, 534 532, 540n32

9/11. See September 11 attacks Aristotle, 81, 252, 309, 451, 452,
abolitionism, 52, 61, 87, 95, 108, 109n5, 455–456, 461, 504, 507, 536n3;
206, 326, 329, 345, 457 Aristotelianism, 67, 80, 135, 236, 438,
acid attacks, 182, 230n5 452, 501, 507, 526, 528
The Act of Killing, 355–357, 399n2 Ashoka, 137
Acton, Lord, 2, 233 assassination, 31–32
Adorno, Theodor, 128, 148, 166n18 Atatürk, Mustafa Kemal, 224–225, 228
Agamben, Giorgio, 35–36, 99, 110n12, Aue, Max, 58
252, 253, 290, 533 Augustine of Hippo, 304, 326, 402n15,
Albania, 114 414, 453, 455, 497, 499, 508, 508–509,
alcohol, 210, 212, 348n14, 349n26, 406, 511, 512, 526, 532, 536n1
408, 425, 435, 436–437, 486–487, 495; Aussaresses, Paul, 121, 261, 277, 278
Alcoholics Anonymous, 258 authoritarianism, 23, 175, 189, 195, 206,
Allah, 9, 315, 316, 319–320, 320, 348n14, 213, 215, 219, 224, 275, 279, 284,
478. See also God 297n25, 379, 383
Althusser, Louis, 22, 53 authority, 12, 13, 28–29, 30, 34, 46n12,
Ancient Rome, 30, 112, 118–119, 122, 46n19, 61, 67, 102, 118, 214, 216,
124–125, 151, 269, 324, 325–326, 337, 240–241, 299, 312, 316, 366, 373, 374,
363, 497 375, 380, 384, 413, 430, 460, 511, 531;
Angulimala, 312 hierarchy, 204, 234, 236, 366, 375,
anomie, 50, 134, 414, 415, 432. See also 460; vs. anarchy, 364, 366
law authorization, 26, 29, 31, 62, 64, 301,
agency, 5, 17, 516, 519 356; diffuse, 277, 284, 297n25, 472;
aggressiveness, 6, 18 self-authorization to punish, 38, 497.
Andrić, Ivo, 121, 467 See also punishment, vigilante
anarchy, 31, 68, 75, 150
anthropology, 87, 105, 109, 300, 358, Babel, 175, 223, 456, 463, 520, 520–521,
366, 388, 414, 441, 497; desistence, 523, 527–529, 532
431–433; pessimistic, 354; Bacon, Francis, 31, 123, 140
techniques, 418 Bad Religion, 523–525, 529, 538n14,
Apocalypto, 389 538n24
Aquinas, Thomas, 67, 74, 236, 326, 501 Bahrami, Ameneh, 182
architecture, violence and punishment, Balibar, Etienne, 22
39, 163, 250, 438–440; phalanstery, Balkans, 33, 356, 466
369, 439, 452. See also criminology Baron Kilbrandon, Charles Shaw,
and space; panopticon; prison; 208–209, 231n15
punishment Barry, Brian, 30
Arendt, Hannah, 17–18, 108, 163, 188, Barthes, Roland, 189, 256
204, 240, 279, 293, 295n3, 489, 507,

579
580 Index

Basques, 218–219; Euskadi Ta (Volkskörper), 253. See also Foucault;

Askatasuna, 219 genealogy
bastinado, 47n21 Bodin, Jean, 61
Bataclan theatre massacre, 225 Bonger, Willem, 86, 420, 421
Bataille, Georges, 105–109, 121, Boorman, John, 364, 401n12, 432, 471
165n4–165n5, 364 Borges, Jorge Luis, 29, 74, 82, 129, 338,
Báthory, Erzsébet, 121 410, 540n32
Battle of Algiers, 276–278, 296n16 borstal, 211, 213, 231n16
Bauman, Zygmunt, 19, 31, 119, 166n18 Bosnia and Herzegovina, 178,
beheading, 9 230n2–230n3, 285, 287, 335, 467, 473,
Beccaria, Cesare, 2, 67–69, 72, 75, 79, 80, 476–478
127, 129, 133, 237, 327, 402n16, 519 Bourdieu, Pierre, 69, 143, 163, 185, 222,
Beck, Ulrich, 163, 206 416, 437, 507
Becker, Gary, 258, 295n11, 424, 426 Brazil, 23, 267
Bedau, Hugo, 71, 74, 86 Brecht, Bertolt, 23, 385, 403, 421
Belgium, 103 Breivik, Anders Behring, 348n16,
Ben-Gurion, David, 184, 188, 297n23 481–482
Benjamin Walter, 23, 49–51, 54, 82, 87, Brešan, Ivo, 390–397
99, 101, 105–108, 109n2, 205, 357, Bruno, Giordano, 157, 338
396, 399, 402n16 The Bronx, 8
Bentham, Jeremy, 67, 70–73, 79, 125, Browning, Christopher, 489, 517–518
250, 427, 439 Brown, John, 119
Bergman, Ingmar, 400n9, 401n12 Buddha, 308, 311–313, 338, 506–507
Beyond Good and Evil, 15 Buddhism, 2, 4, 194, 205–206, 254, 300,
Bhagavad-Gita, 342–343 306, 307–314, 315, 324, 330–331,
Bible, 63, 66, 299, 320–325, 327, 330, 344–345, 349n29, 401n10, 460, 500,
348n19–349n20, 388, 460; epistles, 512; dharma, 308; karma, 90, 205,
324, 348n19; gospels, 299, 324, 326, 308, 311, 313, 314, 331, 501; Pure
337, 345n1; New Testament, 214, Land, 189; repression in, 310, 313;
300, 320, 323–325, 326, 329, 330–334, Zen, 183, 309–310, 313, 346n5
342; Old Testament, 7, 84, 300, Bulgakov, Mikhail, 118, 364, 373, 384,
302–303, 316, 320–322, 326, 329, 461, 534
330–334, 338, 382–383, 396, 521 Bulger, James, 16, 176
biology, 17, 18, 412, 443–444, 449. See Bundy, Ted, 41
also sociobiology; criminology, Burgess, Anthony, 348n19, 351, 402n13
biological bureaucracy, 29, 46n14, 145, 147, 165n9,
Berlin, Isaiah, 95, 118 186, 189, 197, 200, 249, 343, 386,
Billy Bud, 398–399 402n17, 474, 525, 539n31; judicial,
bin Laden, Osama, 260 163; street-level, 40, 128, 263, 452,
biopolitics, 99, 101, 105, 242, 252, 257, 487. See also evil, banality of
268, 396, 411, 426, 435, 457; Bush, George W., 158, 302, 401n11, 410
thanatopolitics, 163, 242, 253–254, Butler, Judith, 109n5
435. See also power, bio-
Blake, William, 41 Cain, 66, 84, 86, 95, 119, 419, 461, 526,
Bloch, Ernst, 3 534
Bobbio, Norberto, 75 Calm at Sea, 33
body, 224, 251, 269; and soul, 149, Cambodia, 205–206, 313
244–245, 248, 532; king’s two bodies, Camus, Albert, 82, 112, 326, 364, 400n3,
161, 245, 262, 290; people’s 400n7, 515
 Index 581

Canetti, Elias, 347n11, 430 civilizing (civilization) process, 109,

cannibalism as punishment, 201–202, 111, 142–144, 146–147, 152, 155, 274,
205, 483 416; decivilization, 147, 158, 164, 247
capital punishment. See death penalty clash of civilizations, 180, 301, 343, 509
Cassirer, Ernst, 79 class, 32, 39, 139, 142, 158, 171, 205, 207,
causality, 93, 141, 161, 195, 246, 368, 237, 238, 297n22, 385, 414, 419, 420,
369, 387, 404, 410, 415, 445, 449, 458, 421, 432, 457, 459; bourgeoisie, 86,
466, 482, 492, 496, 513, 514–515, 518; 128, 148, 199, 389, 411; justice, 163;
determinism, 331; laws of society, middle-, 416, 496, 535; under-, 7,
162; social etiology of crime, 221, 170, 222, 379, 411, 417, 421, 425; war,
409, 421, 495 453n4; working (proletariat), 8, 85,
catharsis, 82, 93, 98, 101, 457 108, 139, 141, 151, 400n4, 416, 417.
Catholic Church, 37, 310, 325, 326–327, See also conflict; war
338, 396, 397, 487 Clausewitz, Carl von, 25, 240
Catholicism, 55, 58, 67, 88, 118, 210, Clinton, Bill, 192
214–215, 216, 255–256, 305, 306, 339, Clockwork Orange, 351, 387–389, 402n14
355, 442, 510 collective responsibility, 33, 204. See
Céline, Louis-Ferdinand, 12, 473 also punishment, collective
Charlie Hebdo shooting, 19, 119 colonialism, 171–172, 173, 194, 271, 338,
Chateaubriand, François-René, 459, 534. See also penal colony
vicomte de, 162 communism, 86, 89, 195, 197, 204,
Chiang Kai-shek, 198, 200 231n13, 301, 305, 355–357, 422. See
child abuse, 18 also Marxism
Chile, 240, 275 communitarianism, 80
China, 2, 47n21, 189, 195–204, 210, 321, comparative politics (of punishment),
341, 343–344, 537n11; Chinese 2, 12, 47n21, 52, 169–229,
empires, 121, 124–125, 197, 199, 269. 230n1–231n17, 304, 341, 386, 453,
See also Confucianism; Cultural 458–459, 536n4; orientalism, 150, 171
Revolution; concentration camp, Coetzee, John Maxwell, 41, 269, 351,
Laogai 365, 488
Chomsky, Noam, 31 concentration camp, 2, 137, 155, 157,
Christianity, 2, 4, 34, 53, 84, 119, 122, 163–164, 188, 231n14, 297n24, 352,
165n7, 175, 194, 205–206, 254–256, 361, 533–534, 539n31; Auschwitz,
266, 299–300, 304, 315–316, 320–330, 164, 167n24–167n25, 254, 507,
337, 340–341, 347n11, 348n13, 372, 510–511, 518, 533, 539n31; Bergen-
382, 497, 499, 511, 513, 520, 524; Belsen, 164, 167n25; Gulag, 85, 164,
Christian fundamentalism, 302, 341, 352–354, 427; Jiabiangou, 167n24;
349n28; First Council of Nicaea, Laogai, 195, 204, 210
347n8; penal worlds of, 325; prison The Concept of the Political, 366
in, 325–326. See also Bible; Catholic conflict, 2, 18, 29, 189, 234, 241, 259,
Church; Catholicism; Protestantism 301, 401n12, 414, 419, 453n3, 506;
Christie, Agatha, 13 ownership of, 29, 328
Christie, Nils, 1, 29, 328, 363 Confucianism, 121, 189, 196–197,
Christ, Jesus, 254–256, 323, 324, 326, 199–200, 201, 204, 231n12, 343–344,
329–330, 338, 363, 371, 397, 502, 529, 350n30, 500; li vs. fa, 189, 195, 197,
540n32; Christology, 58, 82, 161, 222, 343
329, 334, 372 Confucius (Master Kong), 121, 189, 344
Cicero, Marcus Tullius, 121, 287 Connolly, William E., 508–509, 517
Conrad, Joseph, 171, 401n12, 519, 531
582 Index

conservativism, 4, 56, 374, 413, 427, critical theory, 49, 134

446, 514–515, 523 Croatia, xi, 30, 86, 125, 128, 143, 147,
contractarianism, 54, 60–67 165n10, 167n25, 173, 205, 210, 229,
counter-punishment, 34, 188, 535. See 235, 245, 268, 279–288, 295n4,
also punishment 296n20–297n21, 297n24, 305, 344,
crime, 18, 30, 31, 69, 70, 77, 78, 80, 84, 357, 370, 380, 390–397, 399n1,
86, 112, 117, 133, 134, 135, 157, 175, 402n17, 405, 407, 432, 433, 459,
183, 198, 202, 212–214, 251, 258, 259, 464–465, 471, 473–475, 480, 484,
267, 314, 319, 320, 344, 345, 354, 366, 487–489, 491–492, 504, 525
384, 403–453, 453n1–454n8, 459, 489, Cromwell, Oliver, 61, 103, 355
515; as war, 139, 421–422, 471; crucifixion, 9, 10, 124, 129, 163, 317,
definitions of, 404, 405–409; hate, 319, 329, 363; cross politics, 222
176, 287, 408; causes of, 369, 386, cruelty, 2, 18, 41, 70, 71, 78, 88, 112, 117,
405, 408, 410, 415, 422, 444; control, 124–125, 139, 143–144, 162, 242, 261,
324, 424, 426; criminal, 53, 319, 330, 337, 368, 463, 464, 469, 472, 481, 491,
331, 367, 405, 410, 435; of passion, 499, 503, 505, 513, 515; cruel and
422; organized, 29, 212, 414; sex unusual punishment, 115, 124–125,
offenders, 183; rates, 152, 195, 230n7, 269, 327, 344, 458; natural,
297n21, 426; recidivism, 191, 193, 376, 378–379, 540n32; theater of, 164
218, 325, 367; tough on, 442; violent, Cultural Revolution, 164, 191, 195,
191, 200, 202, 212, 214, 279, 281, 487; 198–203, 204; as directed mob rule,
white collar, 414, 421; war on, 219 200; public punishment, 191, 197,
Crime and Punishment, 354, 369–370, 204
439 culture, 6, 8, 24, 30, 123, 150, 158, 159,
criminal justice politics and policy 175, 189–190, 194, 195, 200, 209, 242,
making, 39, 47n22, 112, 209, 212, 253, 334, 335, 363, 370, 373, 389,
359, 368, 386, 405, 421, 445, 446, 511; 399n2, 401n12, 407, 416, 432–433,
public prosecution, 103, 200, 202, 457, 503, 509, 517–518, 527, 532,
208, 229, 276, 286, 489, 491. See also 537n11; as toolbox, 339–341, 343,
penal policy 349n27; concept of, 104, 145, 514;
criminal policy. See penal policy clash as criminogenic, 412, 415–416,
criminology, 1, 2, 86, 139, 153, 193, 251, 418, 494; normative, 104; of control,
292, 399, 402n14, 403–453, 339; of violence, 415, 432–433, 471;
453n1–454n8, 461, 499, 511; and penal, 146, 174, 175, 208; punitive
lead, 437–438; and space, 425, mentality, 144; vs. nature, 113, 378
438–440, 452; anthropological, 410, Czech Republic, 97, 183
431–433; and politics, 403–404,
442–448; biological, 410, 428, Dahl, Robert, 237
433–436, 443–444; Chicago school of, Damiens, Robert-François, 249
412–414; definitions of, 404–405, Dante, 122, 231n10
412, 438–439, 441–442, 449; Darwin, Charles, 117, 165n2, 193, 435,
environmental, 414, 425, 432–433, 512, 531; Darwinism, 258, 293, 410
435, 438, 439; Marxist, 419–423, Dawes, James, 14, 467, 489, 516–517
453n4; psychoanalytical, 429, 454n6; Dawkins, Richard, 21, 111, 328–329,
psychological, 429–431; rational 512
choice, 412, 419–427, 438, 446; Dead Man Walking 99
situational, 424–425; sociological, de Born Bertran, 496
86, 409, 412–419 de Saint-Exupéry, Antoine, 292,
Critchley, Simon, 50–51, 58, 538n19 373–374, 377, 384, 515
 Index 583

death, 27, 36, 37, 54, 55, 56, 57, 67, 77, discipline, 41, 112, 165n8, 166n14, 246,
80, 82, 101–104, 109, 115, 167n24, 250, 280, 296n15, 296n20, 440, 448;
243, 253, 259, 272, 326, 344, 457, 475, auto-, 375. See also power,
480, 486, 507, 510, 513; disciplinary
democratization of, 105; meditation discourse, 1, 3, 5, 11, 14, 17, 20, 21, 29,
on, 469 33, 35–36, 38–39, 75, 82, 105,
death penalty, 29, 37, 45n10, 49–108, 113–114, 132, 133, 135, 152, 158, 177,
109n3, 109n5, 128, 129, 153, 167n25, 189, 199, 215, 223, 234, 238, 262, 264,
169, 175, 178, 188, 189, 190, 204, 217, 279, 290, 301, 303, 304, 313, 315, 316,
229, 230n2, 260, 309, 317, 321, 325, 318, 325, 330, 335, 349n20, 354, 359,
340, 342–344, 348n14, 384, 402n16, 365, 372, 376, 379, 399, 402n17, 404,
410–411, 457, 464–466, 468, 469, 480; 411, 412, 421, 428, 434, 449, 456–461,
afflictive, 71, 101; death-row, 99, 466, 518, 530, 536n5; and truth, 193,
464; extrajudicial, 260; Hippocratic 194, 216, 224, 251, 255, 440, 443, 528;
paradox, 101–102; in Christianity, etymology, 4; of the perpetrators,
326–327, 349n24; Into the Abyss, 128 497; on discourse, 315; metonymies
decapitation, 124, 125 and metaphors, 4, 13, 14–15, 23,
decisionism, 54–60, 457 66–67, 69, 70, 77, 79, 82, 83, 94–95,
Deleuze, Gilles, 242, 264–266, 293–294, 98, 111, 119, 135, 144, 146, 149,
439 167n23, 183, 188, 189, 195, 220, 222,
delinquency, 406–408, 414, 417–418, 225, 236, 250, 263, 264, 266, 271, 277,
438, 471, 474, 481; life course 285, 288, 293, 295n8, 295n10,
persistent vs. adolescence limited, 300–301, 320, 322, 326, 327, 336, 339,
430 343, 346n5, 349n26, 352, 356,
del Toro, Guillermo, 217, 220 368–369, 373, 376, 378, 380, 381, 383,
de Maistre, Joseph, 118 400n4, 402n17, 403, 406, 407, 414,
democide, 2, 21, 190, 205, 313, 356, 417, 422, 424, 425, 427, 428, 434, 435,
537n11 441, 443, 447, 453n4, 455, 464, 468,
democracy, 75, 87, 189, 200, 216, 219, 471, 475, 478–479, 494, 501, 508,
221, 237, 275, 308, 340, 535; and 512–513, 513–514, 515, 520, 523, 529,
theocracy, 340; and torture, 274; 534, 539n31–540n32
deliberative, 267; ethnic, 185. See also discourse analysis, 1, 4, 20, 305, 401n12,
liberal democracy 463, 532
Derrida, Jacques, 45n3, 50, 108, 109n5 discursive chain, 18, 137
de Sade, Donatien Alphonse François diyya, 180, 181, 182–183, 318, 321
(Marquis), 117, 121, 165n6, 166n19, Dogville, 382, 388
364, 375, 407, 468, 477, 499 Donoso Cortés, Juan Francisco María
Descartes, René, 3, 67, 360, 435 de la Salud, 55–58, 67, 101
deterrence, 152, 310, 326. See also drugs, 192, 229, 336–337, 349n26, 442
prevention, general Dostoyevsky, Fyodor, 140, 313, 353,
Devadatta, 311, 506 369–370, 372, 461, 465, 469, 485
deviance, 406–408; secondary Dubrovnik, 37, 142
deviation, 418 Durkheim, Émile, 65, 115, 122, 130,
devil, 8, 91, 93, 220, 271, 311, 348n14, 134–139, 158, 161, 163, 164, 165n11,
397, 436, 464, 477, 479, 502, 508, 511, 166n13–166n14, 179, 215, 239, 241,
519, 525–526, 538n26 242, 318, 409, 412, 413, 421
Dhul-Nun, 347n12
dialectics, 24, 41, 81–82, 259, 329, 420 Eagleton, Terry, 16–17
Dickens, Charles, 127, 128, 319 economics, 5, 290, 426, 427, 428
584 Index

economy, 1, 24, 86, 117, 133, 141, 142, 172, 282, 302
158, 159, 207, 234, 237, 239, 288, 336, European Union, 173, 183, 206, 210,
383, 402n17, 419, 423, 535; capitalist, 211, 213, 221, 224, 279, 286, 288, 304,
86, 87, 266, 288, 383, 421; political, 390, 415, 467, 507
77, 86, 139, 141, 163, 222, 257, 286, euthanasia, 46n16, 99, 102–104
400n4 evil, 3, 6, 13–18, 61, 140, 176, 303, 308,
Ecuador, 222 312–313, 321, 324, 326, 360, 366–367,
Eichmann, Adolf, 17–18, 58–60, 199, 369–375, 379–380, 388, 398, 400n4,
264, 341, 539n31 418, 435, 455, 457, 496–519, 536n1,
electric chair, 26, 29, 87, 119, 263 538n20; arpeggios from hell,
electroshocking, 193, 446 463–496; banality of, 496, 513,
enemy, 63, 77, 147, 201, 250, 259, 273, 539n31; good vs. evil, 93, 210, 353,
274, 348n16, 408, 483; 399, 401n12, 481; ideological, 353;
dehumanization of, 201–202, 269; Jago, 353; mystery of, 335; natural,
friend-enemy distinction and 376–379; “evil men”/“ordinary
punishment, 188, 279; public (hostis) people,” 413, 489, 516–518; “evil
vs. private (inimicus), 46n14, 55, 58. women,” 537n8; radical, 513; roots/
See also Schmitt, Carl causes of, 2, 366, 379, 382, 496, 497,
Engels, Friedrich, 84, 86, 154, 222 499, 508, 513–515, 538n21. See also
entrepreneurs of punishment, 114 ontology of evil
The Elementary Particles, 17 evolution, 67, 111, 150, 271, 280, 373,
Elias, Norbert, 41, 125, 134, 142–149, 415, 435, 449, 454n7, 458, 512; penal,
149, 158, 159, 166n16–166n17, 134–139
166n19, 171, 244, 247, 327, 385, 416, execution, 2, 8, 9, 20, 26, 52, 86, 88, 89,
505 95, 104, 319, 332, 342–343, 345, 356,
Enlightenment (rationalism), 56, 60, 397, 465; by elephant, 117, 165n11;
116, 129, 149, 152, 153–154, 269, 294, depontification, 262; executioner,
458, 462; dialectic of, 128, 149 101, 118, 129, 191–192, 195, 297n25,
enlightenment (spiritual awakening), 352; impalement, 121, 156, 165n11,
307–308, 310, 313 467; wheel, 118–119. See also electric
Erdoğan, Recep Tayyip, 225 chair; guillotine; ling chi etc.
eschatology, 11, 49–51, 87, 95, 99, 257, exile, 309
323 exomologesis, 37, 46n17, 222, 255, 256
ethics, 102, 269, 375, 388, 407, 430, expiation, 26
455–456, 503, 504, 510, 538n15;
bioethics, 102; deontology, 72; fascism, 189, 217, 310, 387, 411, 444, 482
morality of power, 293–294; The Fatal Eggs, 364, 373
normativity, 157, 293, 299, 326, 389, fatwa, 315, 351
426, 445, 459, 507; normative fallacy, fiction, 1, 99, 351–399, 399n1, 402n18,
69, 457; political, 16, 507; relativism, 453, 459, 460–461, 497; and fact, 41,
504, 505. See also power 355–357, 362; and truth, 360;
ethnography, 134, 174 socialist realism, 368
eugenics, 163, 242, 253, 254, 411, 435 fiqh, 9, 179, 315; Shafi’i, 181. See also
Europe, 8, 70, 82, 152, 177, 180, madhab
206–220, 224, 269, 304, 306, 318, 387, film, 2, 355–358, 366–367, 379–383,
390, 442, 481, 501, 534; Council of, 387–389
183, 212, 224, 279; Eastern, 152, 222, fine, 26, 427
427; Eurocentrism, 190; firearms, 346n6, 437
Mitteleuropa, 235, 527; Western, firing squad, 86
 Index 585

flogging, 10 God, 5, 7, 57, 63, 66, 67, 82–83, 89, 91,

forensics, 122, 310, 405, 412, 445, 473, 101, 102, 109, 121, 127, 225, 235, 254,
477, 487 255, 256, 294–295, 302, 304, 305, 306,
Foucault, Michel, 2, 31, 69, 105, 119, 308, 322–324, 328–329, 335,
125, 126, 127, 134, 148, 166n14, 348n19–349n20, 349n28, 398, 400n3,
166n17–166n18, 173, 235, 239–241, 401n12, 426, 435, 457, 490, 501–502,
242–243, 245, 245–247, 248, 249, 250, 508, 510, 512, 517, 519, 520–530, 533,
252, 255, 256–257, 259, 260, 264, 275, 539n29; definition of, 539n30; as
290, 294, 295n6, 296n15, 318, 411, nature, 378, 396; as power, 292–294,
426, 435, 439, 447–448, 449, 471, 503, 455, 536n2; as punishment, 328,
508; Discipline and Punish, 149, 161, 401n12; grace, 347n12, 382, 501–498,
240, 244, 245–246, 279, 318, 447, 452; 505, 513, 518, 519, 532
Foucauldianism, 41, 46n17, 54, 86, Goddard, Henry, 121, 434–435;
97, 98, 112, 115, 133, 147, 161, 172, Kallikak family, 121
214–215, 238, 242–268, 269, 271, 285, Goeth, Amon, 16
289, 372, 396, 432, 508 Goffman, Erving, 359, 522, 536n5
France, 37, 70, 71, 73, 119, 125, 128, 134, Goldhagen, Daniel, 517–518
147, 172–173, 176, 189, 242, 246, Golding, William, 6, 364, 372, 380, 384,
411–412, 481, 485–486, 538n19 400n6, 461
Franco, Francisco, 55, 175, 217, 219, 291 Good Soldier Švejk, 130
Frankenstein, Victor, 10 Goring, Charles, 411
Frisch, Max, 451–452 Gorky, Maxim, 222, 368, 381, 383, 461
Freud, Sigmund, 124, 166n18, 248, 513; governing through crime, 29, 221
Freudianism, 105, 144, 234, 516. See governmentality, 254, 256–259, 289,
also psychoanalysis 357–358, 424, 440. See also power,
Fuentes, Carlos, 169–171, 519 pastoral
Fukuyama, Francis, 149, 189, 301 Gramsci, Antonio, 171, 236, 419, 481
Gray, John, 153
Gadamer, Hans-Georg, 528 Greeks, 80, 124, 309, 454n7, 497, 499
Galtung, Johan, 20, 22 Guantanamo, 35–36, 261, 278
Gandhi, Mohandas, 210, 512 Guatemala, 170
Garland, David, 54, 115–116, 221, 339, Gubec, Matija, 125
424, 428, 445–446 Guerry, André-Michel, 411
Game of Thrones, 37, 46n19, 157, 171, 363 guillotine, 18, 33, 78, 79, 82, 86, 101,
gas chamber, 32, 254, 264 117, 119, 295n7, 318, 469
Gavras, Costa (Konstantinos), 379, 383 guilt, 12, 27, 32, 33, 46n14, 57, 62, 77,
Geertz, Clifford, 25, 459 82–83, 93, 95, 97, 99, 132, 140, 143,
genealogy, 41, 244; pudenda origo 147, 183, 250, 320, 338, 357, 367, 380,
(shameful origin), 250, 271 381, 383, 425, 471, 489, 492, 500, 512,
genetics, 24; “selfish gene,” 21 516, 521, 526, 530, 532–534, 536
genocide, 18, 33, 184, 242, 272;
Armenian, 228, 356; by machete, 18; Habermas, Jürgen, 105–109, 147, 304,
mini-genocide, 63; Rwandan, 205 418, 446–447, 448–449
Germany, 119, 142, 149, 188, 379, 507, habitus, 8, 143, 150, 167n23, 416
517–518, 532–533, 538n19, 539n31 Hamas, 33
Gestapo, 276–277 Haneke, Michael, 267, 364, 380–381,
Giddens, Anthony, 38, 150, 269 383, 400n9, 430, 461, 469
Gingrich, Newt, 152, 442 hanging, 33, 192, 468
Girard, René, 53, 300, 329 Hayek, Friedrich, 86, 426
586 Index

Hegel, Georg Friedrich Wilhelm, 37, human nature, 24, 309, 369–370, 372,
41, 76, 80–82, 84–85, 93, 140, 162, 383, 389, 420, 460, 492, 499, 511
269, 279, 293, 301, 343, 420, 443; human rights, 35–36, 75, 82, 105, 111,
Hegelian, 3, 95, 112, 116, 135, 147, 132, 152, 183, 389; right to life, 108.
149, 154, 157, 158, 344, 420, 446, 509; See also law; right
Owl of Minerva, 104, 443 Hume, David, 26, 56, 135, 294, 409, 434,
Heidegger, Martin, 55, 292, 451, 532, 435, 457, 538n23
540n32 humonetarianism, 132, 222, 229
Henry VIII, 140, 233 Huntington, Samuel, 171
hermeneutics, 31, 33, 299, 303, 328, 336, Huxley, Aldous, 89, 117, 194, 311,
347n8, 520, 524, 528, 529; double, 38 370–372, 383, 387–388, 430, 461
heuristics, 41 Hypatia of Alexandria, 337
Herzog, Werner, 52, 128
Himmler, Heinrich, 276 Iago, 16
Hinduism, 342–343 ideology, 2, 4, 11, 32, 58, 74, 86, 139,
history, 1–2, 18, 105, 111–164, 147, 189, 197, 204, 238, 269, 285, 287,
165n1–167n25, 220, 224, 247, 304, 297n21, 301, 353, 361, 422, 435, 443,
352, 355, 386, 390, 396, 432, 448, 453, 507, 509; The German Ideology, 84–85,
496, 519, 531; end of, 301; eternal 419, 423; Left vs. Right, 16, 24, 32, 75,
return, 155, 162, 384, 397; historical 147, 150, 184–185, 195, 207, 216, 225,
truth, 97, 152; kairos, 352; of the 290, 343, 355, 360, 365–367, 372,
future, 466; of the present, 206, 246, 373–375, 384, 385, 390, 400n4, 403,
264; politics of, 190, 453n5 423, 428, 438, 442–445, 446, 460, 516
Hitler, Adolf, 33, 58, 181, 199, 277, 352, immigration, 213, 288; crimmigration,
371, 480, 510, 538n19 445
Hobbes, Thomas, 2, 14, 60, 61–65, 67, implementation, 39, 52, 167n23, 177,
76, 77, 105, 122, 188, 263–264, 208, 262, 275, 315, 330, 348n14, 358,
296n17, 375, 422, 447, 510, 516 408, 452, 460. See also penal policy
Hobsbawm, Eric, 432, 494, 516 India, 27, 117, 194, 222, 272, 342–343
Hölderlin, Friedrich, 509, 517, 538n18 Indonesia, 31, 355–357
Holmes, Sherlock, 438 Inquisition, 157, 325, 338; inquisitorial
Holocaust, 17, 25, 59, 115, 166n18, 219, civilization, 251, 255
263, 269, 341 institutions, 16, 17, 158, 234, 282, 287,
homo: clausus, 41, 134, 143; economicus, 383; institutionalized punishment,
258, 295n11, 426; mensura, 504; 29, 416; path dependency, 142, 178,
penalis, 258; psychologicus, 429; sacer, 459; penal and political, 86, 204;
36, 163, 259 telos of, 164; total, 132, 210, 214, 353;
homosexuality, 8, 9, 377–378, 434; zombie, 195
penalized, 180, 408 interdisciplinarity, 47n22, 146, 153, 171,
The horror! The horror!, 109, 519 178, 292, 327, 405, 406, 412, 428, 435,
Houellebecq, Michel, 17, 348n16, 375, 435–437, 441, 449, 453, 454n7, 456,
376, 380, 409, 431, 461, 494, 512 463, 478, 517
hudud, 9–10, 50, 180, 316, 318, 337, Internet, 9, 11
348n14, 348n17; adultery, 9, 317, In the Penal Colony, 96–99, 364
348n14; apostasy, 9, 348n14; Iran, 87, 180–183, 267, 270, 302, 348n15
hirabah, 9, 316–317, 336–337, Iraq, 151
348n14; theft, 336, 348n14 Ireland, 210–216, 355; Magdalene
Hugo, Victor, 10, 41, 83, 86, 96, 119, homes, 210, 213–216
142, 364
 Index 587

Islam, 2, 11, 50, 122, 175, 178–183, 189, Kant, Immanuel, 2, 15, 25, 45n11, 58,
194, 224, 228, 306, 310, 315–320, 330, 60, 76, 78, 79–80, 86, 87, 93, 140, 145,
332, 335–336, 338–339, 375, 417, 460, 148, 154, 264, 267, 420, 441, 513,
471, 482; hadith, 316, 347n8, 348n14; 538n21; categorical imperative, 58,
Muslims, 120, 180, 194, 304, 315, 316, 60, 79; Kantianism, 84, 90, 94, 102,
320, 348n14, 348n18, 415, 490, 507; 136, 326, 410, 501, 517
Prophet of. See Muhammad; Shia, Kantorowicz, Ernst, 161, 225, 245
10, 180, 296n14, 306, 347n9, 524; Keane, John, 20–21, 105, 152
Sunni, 10, 228, 306, 347n9. See also Kekes, John, 16, 403, 480, 507, 514–515,
diyya; fiqh; hadith; Koran; madhab; 516
quisas Kelsen, Hans, 55
Islamic State (IS), 8–11, 13–14, 139, 179, Kerouac, Jack, 337
302, 304, 347n11, 471 Kertézs, Imre, 264, 534
The Island, 370–372 Khmer Rouge, 32, 205, 272
Israel, 33, 184–188, 341–342, 343, 488, Khomeini, Ruhollah, 10, 31, 180
539n31; Arab minority and Kidman, Nicole, 382, 401n12
imprisonment, 185–186; “Occupied Kieślowski, Kryzstof, 88–89, 100, 104,
Territories,” 186 164, 363, 419
killing, 15, 16, 108, 121, 188, 216, 218,
Jacquerie, 125 272, 310, 311, 319, 322, 346n5,
jail, 175, 199, 216, 251, 459 355–357, 363, 370, 457, 469, 471, 515;
Japan, 51, 176, 189, 268, 295n2, 344–345 extrajudicial, 297n21, 497; honor, 30,
Jaspers, Karl, 489, 532–533, 540n32 32, 46n13; mass, 263; serial killers,
Jews, 46n14, 55, 185, 254, 257, 269, 430; spree, 20, 222, 311, 437, 465, 484,
348n13, 507, 517, 523, 527, 539n31 494, 537n9. See also genocide
Job, 320, 502, 520–522, 524, 526, 529, King’s Landing. See Dubrovnik
532, 539n29 Kirchheimer, Otto, 45n9, 113, 134,
John of Salisbury, 57 139–142, 158, 239, 242, 415, 441, 451
Johnson, Lyndon, 442 Kissinger, Henry, 233
Jonah, 322, 332, 347n12, 383, 501–502, Kiš, Danilo, 155, 166n21, 294, 351,
539n30 401n12
Jonathan Livingston Seagull Kjellén, Rudolf, 253
Jones, Jim, 480 Koestler, Arthur, 82, 151
Judaism, 184, 341–343, 499, 524 Kojève, Alexandre, 162
judiciary, 29, 286–287 Kolakowski, Leszek, 525–526, 529,
Jünger, Ernst, 33 538n26
just deserts, 139 Koran, 9–10, 120, 179, 302, 315–318,
justice, 31, 50–51, 75, 78, 112, 113, 132, 320, 323, 325, 332, 335, 337,
199, 248, 287, 318, 323, 447, 507, 532; 347n10–347n11, 348n14, 349n26,
armed, 250; people’s, 198, 200, 390; 460; translations of, 346n7–347n8
restorative, 328, 334; revolutionary, Korea(s), 190
18. See also class, justice Khrushchev, Nikita, 352
Justinian, 124 Krishna, 342
Krleža, Miroslav, xi, 155, 356
Kafka, Franz, 82, 96–99, 100, 101, Kubrick, Stanley, 89, 317, 364, 402n13
109n11–110n12, 155, 164, 363, 364, Kurds, 10, 225
400n3, 527 Kurosawa, Akira, 21, 251
Kalashnikov, 19, 431, 467, 493
labeling theory, 417–418, 420, 444–445
588 Index

Lampedusa, Giuseppe Tomasi, 283 ling chi (slow slicing), 117, 121, 125,
Lang, Fritz, 366–367, 370, 385, 386, 481 165n5–165n6
Lao-Tzu, 314 literature, 2, 351–355, 364, 368–377,
Lapenna, Daniela, 53–54, 77, 105, 108 390–399
Lasswell, Harold Dwight, 240–241 Littell, Jonathan, 58
Latin America, 169–171, 268 The Little Prince, 292–293, 294, 373–374
law, 18, 30, 31, 36, 39, 49, 50, 64, 68, 69, Locke, John, 30, 60, 61, 65–66, 76,
163, 231n12, 264, 276, 291, 325, 326, 109n7, 318, 435, 447
375, 387, 404, 405, 409, 430, 449, Lombroso, Cesare, 251, 404–405,
453n2, 499, 513, 535; and order, 212; 409–411, 412, 432, 435, 446, 448
criminal, 46n12, 55, 137, 215, 453n2, Lord of the Flies, 6, 364, 372. See also
474; international criminal, 33; Satan
international public, 301; Islamic. Louis XV, 249
See Sharia; jurisprudence, 180, 181; Luhmann, Niklas, 178, 304
natural, 31, 62, 63, 64, 65, 66, 72; Lukes, Steven, 237, 239
penal, 29, 79, 128, 137, 140, 206, 280, Lustig, Branko, 164, 167n25, 471
407, 421, 453n2, 471, 533; public, 66, Lynch, David, 11, 73
79, 129; of the land, 29; of the lynching, 20, 117, 145, 147, 237, 468
pursuer (din rodef ), 497; punishment
outside of, 36; punitive, 10; Roman, M, 183, 366–367, 386, 481
124; rule of law, 202, 260, 472; Macbeth, 41
silence of, 287; suspended in need, Machiavelli, Niccolò, 61;
290 Machiavellianism, 275, 293, 308
legal syllogism, 133, 157 madhab, 10, 315, 347n9, 348n14;
legitimacy, 29, 38, 60, 75, 95, 115, 147, Hanafi, 319; Hanbali, 179
151, 221, 262, 268, 274, 447, 457 Mahabharatha, 342–343, 349n29. See
legitimization, 20, 33, 234, 272, 276, 280, also Bhagavad-Gita
299, 302, 337, 379, 381; of violence Maimonides, 184, 341
by the perpetrators, 497 Malick, Terrence, 377, 502, 513
Leibniz, Gottfried Wilhelm, 128, 163, Mandela, Nelson, 181
502, 504, 511 Manicheism (dualism), 15, 363, 364,
Lenin (Vladimir Ilyich Ulyanov), 151, 402n17, 481, 503. See also evil, good
400n4 vs. evil
lethal injection, 87 Mankell, Henning, 362
Let Joy Reign Supreme, 294, 297n28 Mann, Michael, 237, 238–239, 295n9,
Levinas, Emmanuel, 269, 510–511 297n27
Levi, Primo, 510–511, 534 Manson, Charles, 480–481, 514, 537n6,
Lévi-Strauss, Claude, 134, 506, 509 537n6–537n7
Lewis, Clive Staples, 334, 388, 396 Manu’s Laws, 165n11
liberal democracy, 35, 103, 217, 238, Mao Zedong, 151, 200, 202, 204
271, 290, 348n16, 369, 387, 389, 511 Marcuse, Herbert, 151
liberalism, 4, 46n18, 56, 67, 111, 130, Marlowe, Christopher, 16
152, 154, 202, 257–258, 293, 370, Marx, Karl, 22, 24, 45n5, 53, 58, 74,
371–372, 375, 381, 423, 426, 442, 84–86, 87, 96, 99, 105, 139, 154, 247,
453n5, 511, 514; penal, 218. See also 279, 419, 446, 451, 454n8
neoliberalism Marxism, 84–87, 95, 115, 125, 133, 163,
Lindblom, Charles, 86, 237, 361, 164, 238, 239, 295n6, 331, 397, 400n4,
420–421 412, 418, 427, 449, 453n4–453n5, 481,
503, 506; Freudo-, 422; Leninism, 23,
 Index 589

88, 151; Maoism, 197, 199, 201, 343; 348n15, 388, 405, 407, 475, 477, 479,
Stalinism, 151; Trotskyism, 199. See 482, 501; homicide rates, 152, 190,
also criminology, Marxist 471–472; mass, 18
Mayakovski, Vladimir, 46n16 Murmelstein, Benjamin, 539n31
media, 31, 282, 285, 345, 388–378; and Murphy, Jeffrie, 85–86, 145, 319, 420
violence, 357–358 Musil, Robert, 79, 335
Melville, Herman, 378, 398–399, 402n18 Mussolini, Benito, 352
mercy, 91–284, 282, 316, 320, 502; myth, 11, 14, 15, 82, 101, 115, 124, 149,
pardon, 58. See also God; sovereign 256, 274, 277, 279, 437, 497, 519, 523,
Merquior, José Guillerme, 245–246 540n32; Greek, 50–51, 234, 377, 515.
Merton, Robert King, 416 See also violence, mythic(al)
metaphysics, 16, 18, 21, 88, 108, 109,
157, 162, 314, 358, 456, 507, 509, 513, nationalism, 61, 207, 264, 379, 507;
530, 536, 538n21 penal, 209
metapunishment, 163. See also Native Americans: punishment
punishment, definitions of among, 123
methodology, 1, 3, 5, 29, 52, 134–135, Natural Born Killers, 357–358
174–178, 236, 237, 303, 305, 307, 332, Nazism, 17, 33–34, 46n14, 55, 58–59,
339, 355–366, 385, 406, 409, 426, 163–164, 189, 253–254, 353, 360, 380,
453n1, 454n6; experiment, 279, 413, 390, 411, 480, 507, 511, 539n31
453n1; for studying power, 264, 291; neoliberalism, 207, 254, 375, 411, 461.
methodological nationalism, 206 See also state, neoliberal penal
Mexico, 116, 170, 229, 471, 478 Nepomuk, John of, 262
Michels’s law (of oligarchy), 123 Neumann, Franz Leopold, 236
Middle Ages, 139, 150, 279 New York, xii, 127, 415, 425
Middle East, 10, 33, 155, 177–189, Nicholas of Cusa, 527, 539n28
178–188, 210, 213, 245, 261, 534 Niebuhr, Reinhold, 233, 511–512
Milius, John, 364, 437 Nietzsche, Friedrich, 15, 126, 145, 244,
Mill, John Stuart, 67, 73, 153 293, 375, 499, 503, 508;
Miller, James, 244 Nietzscheanism, 3, 41, 119, 157, 162,
monarchy, 137, 297n28 250, 291, 347n11, 349n29, 363, 396,
Montaigne, Michel de, 295n3, 454n6, 434, 447, 508, 514, 519; Übermensch,
456, 504–506, 538n16–538n17 377. See also Riddick
Montesquieu, Charles-Louis, 14, 69–70, Nightcrawler, 358
71, 79, 154, 518 Night Flight, 373–374
morality, xi, 16, 17, 18, 57, 58, 60, 78, 79, Noah, 15, 320
102, 104, 116, 135, 139, 140, 142, Nuremberg (Nuremburg), 38, 119, 205,
166n14, 180, 234, 293, 344, 357, 369, 277–278; laws, 55
370–371, 375, 399n1, 401n10, 401n12,
407–408, 412, 429–430, 434, 443, 447, Obama, Barack, 229, 302, 401n11
452, 475, 486, 496, 497–498, 499, 500, One Flew Over the Cuckoo’s Nest, 151,
502, 503, 506–507, 508, 510, 513, 516, 251, 334, 445. See also discipline;
517, 519, 530, 534, 538n15, 539n30. power, disciplinary; psychiatry
See also ethics ontology, 1, 3, 16–17, 56, 69, 109n7, 142,
More, Thomas, 140, 141 196, 255, 264, 269, 289, 303, 308, 310,
Moses, 257, 304, 382 311, 313, 318, 320, 331, 360, 362, 376,
Muhammad, 165n7, 304, 315, 316, 338 379–381, 383–387, 389, 390, 399n1,
murder, 11, 73, 79, 80, 92, 99, 125, 137, 401n12, 412, 426, 433, 457, 461, 507,
170, 192, 200, 212, 292, 316, 321, 344, 510, 528, 530, 532; animal and
590 Index

human, 490–492; blank slate, 435; 231n15, 368; and religion, 330–340,
calibration, 75; collective, 510; 342, 344–345; definitions of, 39–41,
comparative, 330–335; concept of, 441; design, 15, 334, 372, 385, 386,
4–5, 385, 510; dual, 372; individual, 387, 389, 436, 452; formal vs.
111, 423–424; mixed, 151; informal, 281–287, 356; global,
misogynist, 346n4, 511; of evil, 363, 221–222; instruments of, 39; no
368, 498–499, 514; society and/or penal policy as the best policy, 314;
nature, 369–379, 383, 461. See also repressive, 324, 331–332, 374, 381,
discourse; evil; ideology 427, 440, 472
Oppenheimer, Joshua, 355–357 penal population, 39, 211, 296n19,
ordeal, 87, 113, 123, 396, 402n17 297n21, 332, 458–459. See also jail;
Origen, 326 prison; probation
original sin, 87, 135, 210, 309, 399, 513, penal populism, 189, 208, 237
520. See also Christianity penal system, 39, 133, 157, 175, 180,
Orthodoxy, 306, 352, 353 248, 251, 258, 308, 342, 410, 411, 448,
Orwell, George, 22, 117, 152, 364, 391, 488; extra-penological functions of,
421, 492 183
penal welfarism, 207–209
Padilha, José, 266–272 penance, 37, 46n18
pain, 8, 27, 37, 46n12, 67, 98, 137, 193, penology, 82, 112, 217, 284, 327, 334,
269, 272–273, 277, 290, 352, 469, 475, 386, 388, 448
478, 505, 519, 531; body in, 97, 115, philiarchy, 12
128, 157; etymology of, 27, 45n10 philosophy, 3, 22, 45n3, 82, 105, 236,
Paine, Thomas, 105 245, 264, 375, 421, 463, 497, 509; of
Pamuk, Orhan, 228 history, 51, 73; of punishment, 451
panopticon, 173, 246, 250–251, 260, 282, physiocracy, 6
288, 439 Pinker, Steven, 115, 122, 134, 143,
parricide (patricide/matricide), 118, 149–155, 158, 164, 166n18, 245–246,
121, 124, 269, 325 271, 385
Parsons, Talcott, 142, 239, 304, 421 pillory, 157, 352; digital, 147; virtual,
Pasolini, Pier Paolo, 108 262
Paul the Apostle, 324, 325, 328 The Plague, 400n3, 515
Peckinpah, Sam, 364, 381–382, 384 Plato, 51, 161, 295n10, 456–457
pedophilia, 92, 400n5; castration, 183, pleonexia, 364
230n7 pogrom, 32, 163, 269, 390; Kristallnacht,
penal Armageddon, 173 32; St. Bartholomew’s Day
penal colony, 34, 96–99, 139, 172–173, massacre, 32, 391
193, 205, 223 Poirot, Hercule, 13
penal mentality, 339–341 Poland, 88–89, 92, 96, 104, 419, 469, 525,
penal paradox, 219 538n26
penal periphery, 169, 171, 223 police, 7, 39–40, 73, 123, 188, 199, 213,
penal policy, 1–2, 3, 9, 31, 33, 47n22, 69, 220, 268, 269, 282, 287, 361, 396–397,
141, 152, 171, 178, 179, 180, 184, 193, 414, 425, 443, 473, 486
197, 200, 203, 206, 208, 211, 218, 220, policy change, 39–40, 86
237, 242, 279, 280–282, 302, 303–304, political science, 1, 2, 18, 36, 167n23,
304–306, 310, 311, 313, 316, 320, 321, 234, 287, 292, 304–305, 386, 389, 405,
323, 325, 327, 352, 369, 370, 379, 381, 444; fiddling while Rome burns,
383–386, 388–390, 399n1, 423, 426, 389, 428; of the Holocaust, 25
428, 445; and social policy, 222,
 Index 591

political theory, 1–2, 49, 53, 54, 60, 75, prison, 11, 26–27, 39–40, 69, 109, 112,
87, 94, 101, 104, 171, 236, 237, 366, 127–128, 130, 138, 157, 158, 165n8,
370, 371–372, 385, 402n17, 446, 447. 175, 180, 193, 204, 213, 216, 229, 238,
See also anthropology; ontology 246, 248, 251, 268, 280, 283–284,
politics, 1, 3, 24, 26, 31, 38–39, 95, 101, 297n21, 332, 388, 396, 446, 461, 482,
133, 139, 158, 264, 291, 304, 352, 366, 491; Auburn system, 128;
380, 385, 388, 404, 409, 425, 435, 445, containment of people, 112; Eastern
457, 509, 514, 532, 535; definition of, State Penitentiary, 127; for pirates,
234; of punishment, 29, 128, 302, 458–459; incapacitation, 152, 461; in
304, 319; penal, 41, 365, 387; Islam, 319–320, 348n18; in Israel,
populist, 132 184–187; life imprisonment, 109,
Pope, 241; Benedict XVI, 215; Francis, 479; mass imprisonment, 152;
87, 215, 256, 327; John Paul II, 215, privatization of, 186–187, 230n8;
327; Leo XIII, 327 rates, 210–211; solitary confinement
Pope, Alexander, 119, 134, 508 (prison within prison), 193
Popper, Karl, 80, 248, 275, 359, 361, 451, probation, 39, 157, 461, 495
459, 509 Protestantism, 79, 134, 255, 306, 339,
positivism, 3, 405, 428 400n9, 500, 511; predestination, 522;
Pound, Ezra, 129, 352 sola scriptura, 299
power, 2, 10–11, 40, 46n17, 61, 112, 115, psychiatry, 103, 112, 213, 215, 251, 436,
158, 161, 166n18, 171, 192, 204, 224, 444, 494
230n9, 233–295, 295n1–297n28, 304, psychoanalysis, 53, 93, 105, 144, 248,
339, 355, 385, 388, 449, 458–459, 511, 329, 369, 371, 438, 449, 470; Oedipus,
531; and “biochemistry,” 370–372, 254, 378, 379, 497, 500
383; and force, 293–294; apparatus, psychology, 18, 32, 93, 112, 133, 144,
295n8; bio-, 251–254, 411; concepts 159, 248, 291, 329, 369, 371, 444, 471,
as tools of, 409; definitions of, 241, 509, 518. See also criminology,
264, 536n2; disciplinary, 216, 223, psychological
242, 248, 250–251, 253, 258, 259, 268, punishment, xii, 1–2, 3, 4, 6, 7, 8, 9–11,
280, 282, 295n9, 396, 439; division of, 13, 23, 25, 26–41, 46n17, 47n20, 66,
70, 282; economic, 297n27; games of, 69, 84, 102, 116, 129, 166n12, 214,
61, 238, 385, 531; nominalism, 240, 252, 274, 299, 302, 326, 332, 339,
242, 248, 264; pankratism, 291; 349n20, 374, 390, 398, 403, 419, 432,
pastoral, 254–256, 258, 262, 289, 334, 452, 453, 456, 490, 494–495, 517–518,
411; sources of, 236, 238–239; 527, 530, 536n1; agents of, 32; and
sovereign, 54–55, 61, 62, 63, 70, 98, power, 235, 245, 257, 291–292,
130, 166n14, 188, 219, 242, 249–250, 295n5, 458; as discipline, 251; as
252–253, 259, 262, 268, 274, 280, political instrument, 185; as
280–288, 289–290, 292–294, 396; violence, 38; auto-punishment, 256;
technologies of, 163, 242, 244, 266, collective, 33–34, 46n15, 59, 320;
296n20, 439, 448; to punish, 50; two colonial, 166n20; corporal, 129, 172,
faces of, 236, 237–238; typology of, 180, 190, 192–195, 216; definitions
235, 242, 248, 256; will to, 375, 506 of, 12, 31, 45n8–45n9, 45n11, 61,
pragmatism, 83, 135, 279, 400n3, 427 113–114, 128, 132, 262, 268, 295n5,
Prescott, James W., 430, 454n6 442, 457, 459, 530, 531; divine, 36, 61,
prevention, 75, 112, 308, 314, 332–334, 63, 316, 321; draconic, 33; games of,
444, 449; general, 74, 95, 318; special, 188, 457, 497, 531; horizontal, 152;
95 informal, 104, 120, 145, 146, 163, 172,
182, 188, 223, 262; just, 8; language
592 Index

of, 31; legitimate, 2; negative vs. retribution, 8, 27, 33, 36, 52, 53, 69, 80,
positive, 295n12; normative vs. 86, 93, 95, 101, 112, 113, 151, 170,
sociological object, 158; of 180, 193, 202, 205, 207, 304, 313, 316,
punishment, 398; physical vs. 318–319, 320, 331, 332, 334, 367, 381,
psychological, 129; private, 30, 491; 384, 401n12, 410, 412, 420, 423, 495,
semistructured, 261; subject and 518; retributivism, 15, 86–87, 132,
object of, 37; strict, 514; vigilante, 145, 340, 343; lex talionis vs. lex
204, 351, 497; vs. forgiveness, sanguinis, 112, 182, 321–322, 332,
327–328, 346n2; within punishment, 340. See also quisas; revenge
210 revenge, 31–32, 46n19, 111–112,
punitive city, 149, 318 151–152, 321, 466–467; The
punitiveness, 213, 218 Forgiveness of Blood, 114
Putin, Vladimir, 352 revolution, 152, 197, 324, 422–423, 427,
Pu Yi, 47n21, 121 443, 527; French, 112, 162–163, 290,
460; Islamic, 180. See also Cultural
Qaddafi, Muammar, 163, 261 Revolution
Quetelet, Adolphe, 86, 411, 446 rhythm of crime, 86, 409, 411, 437, 446,
quisas, 180, 182. See also retribution 459. See also statistics
Quran. See Koran Riddick, 376, 377
right to punish, 30, 60, 67; patriarchal
Rabin, Yitzhak, 188, 497 family, 204, 216, 231n12, 383, 430,
Rambo, 205, 291; Croatian, 484 481; paterfamilias, 30; prepolitical,
Rancière, Jacques, 200 65; punishing father vs. nurturant
rape, 15, 27, 137, 145, 257, 381–382, parent, 384, 430
401n12, 468, 471 Rivière, Pierre, 244, 508, 537n9
rational choice, 5 The Road, 401n12, 539n31
Rawls, John, 69, 73–75, 76, 241 Robespierre, Maximilien, 77–79, 89,
The Reader, 539n31 236, 514
Reagan, Ronald, 26, 152, 419, 446 Robocop, 264, 266–268, 296n14
Red Guards, 33, 195, 197, 201. See also Rodger, Elliot, 494–464, 537n8
Cultural Revolution Romania, 89, 466, 487
rehabilitation, 1, 27, 112, 193, 309, Romand, Jean-Claude, 485–486
332–334, 367, 384, 444, 448, 449, 488 Roosevelt, Franklin Delano, 422
Rejali, Darius, 270–278, 285, Rousseau, Jean-Jacques, 3, 37, 58, 61,
296n15–296n17, 476 76–77, 79, 101, 103, 150, 343, 346n5,
religion, 1, 11, 15, 16, 32, 36, 96, 178, 386, 400n4, 435, 511
194, 215, 292, 294–295, 299–345, Rusche, Georg, 45n9, 113, 134, 139–142,
345n1–350n31, 404, 420, 433, 453, 158, 239, 242, 415, 441, 451
459–460, 523; and punishment, Rushdie, Salman, 31, 351–352
302–303, 304; civic, 77; crusades & Russell, Bertrand, 82
jihads, 33, 151, 334, 338–339; penal, Russia, 34, 222, 271, 360, 373, 467, 473,
339; political, 301, 331; sacred text, 480, 537n11. See also Soviet Union
303–304, 304–306, 335, 345n1, 364;
secularization, 301–302; world, 2, sacrificial goat, 53, 105, 108, 130, 183,
306, 341, 460 329, 457, 533
Renoir, Pierre-Auguste, 5, 13 Salazar, António de Oliveira, 119, 216
republicanism, 35, 77; penal, 318 Sanson Charles-Henri, 295n7
resocialization, 1, 27, 193 Sartre, Jean-Paul, 247, 296n16, 353,
401n12, 509, 510, 511
 Index 593

Satan, 92, 329, 397, 478–479, 481, 522, official, 199. See also criminology,
525–526. See also devil sociological
Saudi Arabia, 179–180, 304, 335; Basic Solzhenitsyn, Alexander, 164, 273,
Law of, 302 352–353, 361, 364, 537n11
Savonarola, Girolamo, 37, 396 Son of Saul, 163
Scarry, Elaine, 27, 45n10, 273 Sophie’s Choice, 32
Schlöndorff, Volker sovereign, 54, 61, 82, 98–99, 101, 108,
Schmitt, Carl, 22, 53, 54–55, 57, 150, 109n6, 119, 129, 161, 192, 217, 224,
154, 178, 366, 384; Schmittianism, 7, 225, 249, 254, 265, 277, 284, 297n25,
50, 55, 77, 225, 236, 241, 263–264, 530; legibus solutus (above the law),
279, 290, 372, 400n4 65; lex animata (living law), 225, 253;
scientology, 345 lèse majeste, 130, 158, 225; right of
Scotland, 207–209, 211 death and life, 102. See also power,
Scruton, James, 176 sovereign
self-punishment, 37, 45n7 Soviet Union, 46n16, 196, 253, 352, 361,
Sellin, Thorsten, 415, 453n3 373; penal history of, 361
September 11 attacks, 19, 31, 36 Spain, 175, 205, 216–220, 291, 380, 390;
Serbia, 63, 155, 166n21, 297n24, 465, Law on Civil Security, 220; Penal
467, 471 Code of Democracy, 218
Shaken Baby Syndrome, 12 Spierenburg, Pieter, 147, 246
Shakespeare, William, 16, 21, 169, 353, Spinoza, Baruch (Benedict), 239,
364 292–294, 502, 503, 525, 531, 536,
Sharia, 9–10, 79, 179–180, 184, 191, 302, 539n30, 540n32
316, 317–320, 335–336, 342, Srebrenica, 63, 467
348n17–348n18; definition of, 315; Stalin (Joseph Vissarionovich
interpretation of, 10 Dzhugashvili), 151, 241, 253, 352,
Shelley, Mary, 10 371, 480
Shklar, Judith, 269 state, 2, 9, 39, 50, 57, 61, 66, 75, 76, 77,
Shoah. See Holocaust 80, 82, 89, 90, 129, 191, 193, 214, 272,
A Short Film About Killing, 88–96 295n8, 331, 336, 344, 370, 387, 419,
Simon, Jonathan, 29, 132, 221 446–447, 457; and religion, 338–339;
Simpson, Orenthal James, 348n15 building, 152, 158, 235, 268, 279, 287,
Singapore, 189, 190–196; caning, 288; governmentalization of, 257;
192–195 national, 31, 77; neoliberal penal,
skepticism, 2, 16, 172, 223, 300, 373, 411; raison d’état (national interest),
454n6, 504, 506, 527, 530; 57; violence, 21
Pyrrhonism, 3, 493 state of exception, 35, 68, 184, 272, 275,
slavery, 9, 36 279; coup d’état, 228
social contract, 53, 60, 61, 76–82, 105. state of nature, 38, 65, 109n7
See also contractarianism statistics, 86, 87, 128, 175, 202, 210, 212,
social control, 214–216, 345, 439 259, 285, 361, 411, 436, 446, 459
social pedagogy, 149 Stauffenberg, Graf von, 34
society, 17, 18 Steiner, George, 3, 520, 527–528
sociobiology, 109n4, 444, 454n7 stigmatization, 8
sociology, 18, 29, 36, 46n13, 69, 94, 128, stoning, 8, 9–10, 321, 348n14, 348n16
134–135, 141, 142, 163, 171, 178, 216, Strauss, Leo, 55, 83, 366, 389, 400n4
221, 236, 292, 300, 359, 407, 412, 423, Straw Dogs, 381–382
441, 443, 531; micro-sociology of suffering, 12
violence/crime, 5–6, 45n6, 412;
594 Index

suicide, 27, 103–104, 105, 130, 311, 475; 268–278, 280, 285, 291, 296n16, 319,
“to suicide someone,” 46n16 332, 338, 375, 382, 397, 454n6, 469,
Sunnah, 302, 315. See also Islam 471, 476–478, 490, 492; chamber, 38,
Sutherland, Edwin, 412, 414 155; definitions of, 165n3, 272, 274,
Svendsen, Lars, 507, 509, 515, 517–518, 275, 289; electric, 117, 120–121, 271;
525 of animals, 125, 144; ticking bomb
scenario, 67
Šibenik, 47n21, 116, 155, 390–391 totalitarianism, 137, 163, 164, 195, 199,
204, 275, 352, 372, 383, 388, 390, 391,
Talmud, 322, 342, 497 509; preceptoral system, 201
Taoism, 306, 314–315, 343, 346n6, Trump, Donald, 229, 410
350n30, 401n10, 460, 500 truth, 361, 441, 443, 453, 456, 486, 509.
Tao Te Ching, 314, 401n10, 460 See also discourse; fiction
Tarde, Gabriel, 412 Tuđman, Franjo, 297n23
Tamburlaine the Great, 16 Turkey, 224–229, 240, 304, 356,
tazir, 180, 318–319 500–501; Ottoman Empire, 121
teleology, 310, 410, 458, 503; telos, 164,
405, 441, 479, 507 Ulpianus, 112
Ten Commandments, 88, 321 Ukraine, 147, 261–262
terrorism, 19, 119, 218–220; war on United Kingdom, 150, 176, 183, 186,
terror, 158, 260 194–195, 208–209, 210, 280
theodicy, 230n5, 456, 462, 463, 478, 490, United Nations, 82, 211, 313, 458
495–496, 505, 508, 512, 515, 517, United States, 51–52, 104–105, 134,
520–532, 540n32; anti- 8.78; atheist, 137–139, 169, 170, 175, 179, 180, 185,
400n3; ironic, 520, 525–526, 532; 186, 194, 196, 208, 221, 237, 238, 245,
melancholic, 520, 523–525; and 267, 302–303, 339–340, 358, 359, 408,
metanoia, 304, 402n13, 498, 532; 413–414, 422–423, 437, 442–443, 458,
“rational,” 520, 527–530, 532 472, 487, 496; California, 131–132,
theology, 15, 18, 35, 87, 157, 246, 256, 169, 523; Maine, 339; Mississippi,
266, 292, 300, 305, 326, 328–329, 335, 339; New Mexico, 491; Prison Rape
404, 463, 495, 508, 511–512, 513, 521, Elimination Act, 223; Texas, 52, 116,
522, 536n4; as ideology of 223; three-strikes laws, 218
imprisonment, 325; comparative, utilitarianism, 27, 36, 67–75, 95, 123,
299; negative, 121, 527; political, 50, 136, 320, 326, 337, 367, 399, 518
54, 56, 58, 82, 83, 101, 108, 245, 274, utopia, 16, 99, 157, 318, 370, 385, 387;
471 dystopia, 195, 387, 390–397; penal,
Thomas theorem, 359 194
Thorn, Damien, 8
Tilly, Charles, 20 Vargas Llosa, Jorge Mario Pedro, 234
Tobianski, Meir, 184, 341 vengeance. See revenge
Tocqueville, Alexis de, 70, 125, 127, 269 Vian, Boris, 364, 365
Tolkien, J. R. R., 101 victim, 39, 152, 183, 218, 221, 318, 345,
Tolokonikova, Nadežda, 34 354, 397, 399n2, 414, 424, 434, 467,
Tolstoy, Leo, 84, 169, 361 471, 478, 497, 519; Stockholm
Tomašić, Dinko, 433 syndrome, 471; victimization, 214,
torture, 15, 16, 26–27, 36, 53, 67, 71, 78, 223; victimology, 310
97, 98, 112, 116, 121, 126, 129, 136, violence, 1–2, 3, 6, 7, 8, 13, 18–26, 38, 49,
155–157, 158–159, 163, 175, 194, 196, 84, 93, 211, 312, 337, 342, 349n29,
200, 217, 225, 235, 246, 259–261, 379, 401n12, 453, 456, 530, 534,
 Index 595

539n31; against women, 401n12, Thirty Years, 8; World War I, 97,

483, 494–495; and the sacred, 300; as 181, 380, 464; World War II, 33, 63,
normative concept, 45n2; causes of, 143, 184, 189, 194, 257, 266, 277, 285,
xii, 18, 22, 368, 404, 432; collective, 297n21, 380, 391, 414, 444, 445, 464,
301; decline of, 149; definitions of, 480
18, 20, 33, 41, 149, 234, 531; divine, warlord, 10, 286, 492
23, 49, 51, 109n1; democratization Weber, Max, 115, 236, 238, 426
of, 19, 20, 152; domestic, 216, 436; Webster, John, 16
gang, 413–415, 417–418, 472; Welles, Orson, 26, 352, 353
gendered, 30, 537n11; masculine, West, 53, 103, 125, 128, 130, 149,
166n18, 431–432; meaning of, 18; 171–172, 180, 183, 184, 189, 193, 194,
monopoly of violence/force, 29, 143, 195, 217, 224, 231n10, 254, 261, 316,
447; mythic(al), 50–51, 109n2, 318, 345, 360, 370, 372, 373, 387, 389,
402n16, 457; paradox of, 281; 406, 435, 501; Western science and
political, 178, 188, 211, 221, 242, 285, Eastern spirituality, 370
288, 355–357, 379, 432; racist, 176, Whig(gish) history, 97, 111–113, 130,
363, 443, 534, 539n30; relation to 139, 149, 155, 157–158, 178, 217, 458
force and power, 108; sexual, 18, Whiplash, 310
45n4, 92, 183, 223, 380, 401n12, 436, The White Devil, 16
470, 496; state, 101, 443; structural, 5, The White Ribbon, 380–381, 430
18, 22–24, 170, 196, 357, 363, 368, Williams, Tennessee, 118, 376, 377–379,
417, 443; subjective, 18, 22–24; types 461, 502
of, 20–21; urban, 414; youth, 18 Wilson, James Q., 152, 423–424, 461
Vlad the Impaler, 156 Wilson, Woodrow, 263, 264
Voltaire, 103, 515, 527, 532 witch hunt, 33, 152, 201, 221, 272, 396,
von Trier, Lars, 364, 382, 384, 401n12, 499
537n8 Wittgenstein, Ludwig, 3, 339, 462, 527
World Prison Brief, 184, 211, 217,
Yahweh (Jehovah), 316, 320, 323, 327, 231n11
525. See also God Wu, Harry, 204
Yazidis, 10
Yourcenar, Marguerite, 37, 409
Wacquant, Loïc, 185, 222, 308, 411, 423 Yugoslavia, 33, 86, 92, 147, 205, 279,
Wahhabism, 10, 230n4 282, 314, 390, 437, 464–466; penal
war, 9, 21, 54, 62, 70, 77, 86, 147, 154, history of, 297n21
157, 173, 205, 234, 250, 252, 257, 259,
272, 273, 280, 283, 284, 408, 471, 472, Z, 379–380, 386
495, 535; Algerian, 120–121; Zagreb, 32, 92, 125, 356, 506
American Civil War, 151, 434; Zarathustra, 88
crime, 33, 45n8, 53, 277, 286, 308, zero-tolerance, 190, 414, 425
314, 467, 517, 539n31; culture, 288; Zimbardo, Philip, 8, 150, 188, 279, 489,
definition of, 25; holy, 10; in Syria, 516
152; Kalinga, 137; Napoleonic, 151;
on drugs, 152; prisoners, 9, 272, 277; Žižek, Slavoj, 22–24, 49, 163, 348n17,
sperm, 434; Spanish Civil, 217; 377
 About the Author

Krešimir Petković is an assistant professor at the Faculty of Political

Sciences, University of Zagreb. He teaches courses in political theory and
public policy. He is the author (in Croatian) of State and Crime: Politics and
Violence in Croatia 1990–2012 (Zagreb: Disput, 2013), and is a member of
MENSA Croatia and the Croatian Political Science Association.

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