Letters to the Heretics

Fifth Letter

Dear X,[1]

Each person has been able to note, some with indulgence, some with apprehension, that for several years the political tensions of this country have exploded in episodes of open and brutal illegality. I do not want to expound the reasons for the rise of this South American situation in our country,[2] nor on the preventive and repressive measures that could contain this phenomenon, nor do I intend to investigate the political and ideological origins that sometimes underlie such criminal activity. Though such reflections are certainly necessary, they would be fruitless if they weren’t part of a solid theoretical framework that would permit us, with assurance and in a systematic way, to confront unavoidable criminal phenomena by attributing to them a useful role in society.

Such a preliminary theoretical inquiry would be particularly necessary today, when the young people who are instinctively close to Marxism nevertheless find themselves, due to the free circulation of a plethora of formulations (generally confused, incoherent and weak-willed) concerning these problems, completely disoriented concerning legality, rights, justice and the State. A serious sweeping with an ideological broom – particularly concerning such delicate matters – can no longer be deferred. It is no longer tolerable that always-larger sectors of the youth squander their lives in illegal political activity (suicidal for them and dangerous for the orderly development of society) on the basis of a bad interpretation of certain Marxist axioms, such as “the withering away of the State and its laws,” which is a formulation that must, on the contrary, be correctly interpreted if it is not to be taken literally and if simple souls are not to believe, in good faith, that armed struggle against the law and the State is in itself a step towards communism. But let us proceed in an orderly way.

According to a classic thesis, the government is nothing other than an extension of the bourgeoisie. According to Lenin, the period of transition to communism is characterized by the continued existence of the State, but a particular kind of State, one “without a bourgeoisie.” In fully matured communism, the State finally disappears. These theses are known by all.

Today, despite the Soviet involution of the State apparatus, which, far from withering away, has consolidated itself with the passage of time, we in Italy will perhaps be the first to see a rare historical event: the extinction of the State and its laws. So that this statement doesn’t seem exaggerated or risky, I will try to demonstrate its truth to you.

An anarchist[3] once said, “the superman of the State is the strength of the weak.” I say that the State is the weakness of the strong. It follows from this that the strong (the independent, responsible, self-disciplined individuals) no longer need, have never needed, governmental injunctions, imperatives, juridical norms or threatened sanctions, and that the weak (the submissive, the timorous, the incapable, the herd) have need of the State as an energetic school.[4] The State is of no utility for the former (and in case the State constitutes a source of privileges, this would be an additional reason to suppress it!); for the latter, the State takes the place of a school for civic power.[5] But once the objective of making all the citizens who are disadvantaged participate in civic affairs, the State no longer has a reason to exist. In other words, the State must force the absent citizen to participate; it must in sum give him courage, not only through the traditional means of voting, but also in more direct forms. At the moment that the participation of all has finally been gained, thw State and its legal apparatus will become completely useless structures.

But one might object that participation is one thing, while injunctions, orders and imperatives are quite another. For the moment, a situation in which participation can develop harmoniously, without antagonisms or conflicts of interest, is unthinkable. I am quite aware of that. Nevertheless, when the injunction is the expression of mass autonomy, the product of popular will, it loses its odious and arbitrary characteristics and is spontaneously obeyed, without the obligation to have recourse to constraints. The imperative must never be presented as heteronymous, as the capricious manifestation of an imperative and secret will. The icy “You must” must become “You must because you have contributed to the formation of the will”; the arbitrary injunction must be transferred into a motivated injunction, an injunction whose purpose is obvious to all.

Then the precept will be spontaneously obeyed, and governmental constraints will no longer be necessary.

Moreover, only naïve people have believed and still believe that the individual follows juridical orders due to the sanctions that threaten him. The anarchists are the candid champions of such a belief. Police forces and courts are, in fact, not absolutely indispensible with respect to juridical norms. Back in 1924, the eminent Soviet jurist Pasukanis,[6] who subsequently fell into disgrace and was finally and rightfully rehabilitated post mortem, shrewdly observed that “debts are not only settled by individuals because they ‘would in any case be recovered,’ but also so that they [individuals] can retain their credit in the future.” Replace “debts” with “juridical obligations” and you will easily determine that respect for the norm doesn’t at all depend on the fear of sanctions or on the private conviction that the norm is just, but uniquely on the necessity – in whose grasp we must keep the individual – of retaining his own credibility in the future.

And the credibility of the individual is his credit, the modern capital that is materialized in his being, his past work that annihilates his current life. To pay his debts to obtain credit in the future, to not violate the norm so as to benefit from the privileges that it can dispense: this is the logic that permits us to attain the disappearance of the coercive apparatus of the State. The force of law doesn’t reside in the fact that violations are subject to sanctions, but the fact that the people think and act juridically.

The new penal regulations[7] – combated by the most retrograde jurists and politicians – give my assertion the support of experience. Under certain conditions, prisoners have been released; in time, almost all of them returned to prison. The norm imposed their return, although escape was possible. But what escape? The impossible escape from capitalism? They chose the norm; they returned to prison having understood, instinctively but with more acuity than the weak-willed ultra-Leftists, that it is impossible to escape from capitalism because it is materialized in the being of each person.

In what sense must we speak of the extinction of the law? The notion must be understood, not as the disappearance of the law itself, but the disappearance of its visible, traditional manifestations: courts, prisons, police departments, etc. The apparatus that is assigned to the enforcement of the law must cease to be concentrated in a small number of specialized organs, and must be distributed to and materialized in the living body of society, in the people and all of its components, so that this apparatus is no longer perceived as a separate body.

Intersubjective juridical antagonism must be transformed, imperceptibly but surely, into intrasubjective juridical antagonism. Modern law should not be heteronymous, but autonomous. It must be the law of the internal forum and, if it is, the law[8] will finally return to its original meaning, in which it was not separate from customs; the juridical injunction will once again be nothing other than the community’s rule of conduct.

Thus, in a certain sense, we will see the realization of the anarchist ideal of a society without laws, where the norm is spontaneously accepted by all, and obedience will be guaranteed by the fear of being excluded from the community and its benefits – excluded from the only community that dispenses them – the community of capitalism.

The ultimate objective is law without coercion; law that has penetrated mankind to the point that it has created a second nature in it (or perhaps a single [unified] nature); law that is neither cold nor inert, but warm and active in such a fashion that every person ends up a living juridical norm!

For a long time, the most authoritative philosophers of the law have agreed that the law doesn’t claim knowledge of life; it isn’t a technique or a tool of research. On the contrary, the law wants to direct life. And what more effective system for direction could there be than penetration into the very heart of life and materialization in mankind itself?

This anthropomorphization of the law will assuredly not take place without suffering. In the 19th century, the eminent jurist Jhering recalled that the birth of any new law is accompanied by “traces of sweat and blood,”[9] and, here and there, we have also seen pathological resistance from individuals who have been confronted with the absorption of the law [into their bodies].

How do we create this juridical-human nature? By making evermore faint the boundary between behavior according to the law[10] and behavior as such[11]; by convincing the people that “just” conduct doesn’t derive as much from a law that prescribes it as from the profound adequation of this conduct with reality and necessity; by gradually effacing the limits that distinguish the law, the decree and the other traditional sources of authority from propaganda. Lenin already understood that the law is a form of propaganda and that it generally takes the place of the slogan. Meditate upon his words, which are so rich in political wisdom: “To the simple worker and the simple peasant, we presented our ideas on policy, all at once, in the form of decrees. The result has been the conquest of the enormous trust that we have had and we continue to have among the popular masses.”[12] Law must imperceptibly become propaganda, and propaganda must imperceptibly become law. The citizen must respect the law spontaneously, as if it were a propagandistic slogan that is freely agreed with and, inversely, he must obey slogans (whatever the media that distributes them) as if they were juridical norms.

We have already started down this path. Who doesn’t see that the mass media[13] (newspapers, television, union directives) spread veritable juridical norms of obligatory character and real diktats[14] from which the citizen can only remove himself with difficulty and, inversely, that the laws accomplish an irreplaceable propagandistic function when they are promulgated with opportune hype?

This progressive identification of the laws with propaganda and vice versa must be accompanied by a gradual multiplication of centers of diktat-production. We must confer a normative power, not only upon the center [of power], but the periphery as well (I mean: local organizations, unions, neighborhood committees, human aggregates of all kinds), by diluting the legislative function into the people themselves and by renouncing the mediation of its political representatives.

The people, dear comrade, need laws and cannot abstain from thinking juridically. We need to grant them the laws that allow them to live, but not for free: they must earn them; they must work for [the right to] the formulation of the laws; they must actively contribute to creating the jurisdiction[15]; they must express themselves, participate, take the floor. It is too easy to make use of a group of specialists (jurists and politicians) who give you the goods readymade! Goods that, like all commodities, leave everyone unsatisfied and become the source of endless complaints. The people should make their juridical crap for themselves and, if they are discontented with the norms that they have been given, well, let them change them! Provided, of course, that they are never without them.

What did I mean when I said that the men of the law must disappear? Certainly not right away, but their functions must be significantly reconsidered. It is no longer conceivable that jurists continue to be the most universally scorned category; it is no longer acceptable that the juridical operator continues to be treated like the “boss’s servant,” the “guard dog of power.” We must confide him new tasks; his professional role must be transformed and ennobled. It will fall to the people to create juridical consciousness and to the judge to stage the violations of this consciousness.

The jurist can no longer limit himself to producing laws (either in the abstract form of particular statutes or the concrete form of penal sentences): the people must assume these tasks. For his part, the judge must stage the spectacle of the infraction; he must conduct it, direct it and, when necessary, create it; he must make violations of the law as passionate as possible. Enough glum, tedious, faultfinding trials! Enough bureaucratic, judicial inquests, conducted by paper-pushers sitting behind desks! The old circus games[16] no longer satisfy the people, who want spectacles that are more lively and more passionate, that smell of “sweat and blood,” to return to Jhering; they want spectacles whose stages aren’t limited to the halls of justice, but fill all of society.

Moreover, the old laws appealed to particularly solemn formula and rituals so as to create a juridical life alongside real life: the trial was a dramatic representation. This might suit today’s society, provided, of course, that the scenic effects are adopted to modern sensibilities and that the judicial drama is played out everywhere.

Consequently, the repressive apparatus must continue to exist, but not to condemn and repress (we must even change its name). It must instead represent the spectacle of the class war in the most realistic way possible.

The perspective that I’ve sketched out here is reinforced by the attitudes of the vast majority of young people, even among their most subversive and rebellious sectors. The youth have not ceased to think and act juridically. Their slogans, even the most radical ones, have been expressed in juridical forms. How many times have I heard the following chants? “The MSI[17] [is] outside the law”; “To kill a fascist is not a crime”; “Long live the just struggle of . . . .” (doesn’t “just” signify according to the law[18]?). Haven’t the Red Brigades expressed themselves juridically by instituting proletarian tribunals and invoking the conventions of international law?

In all these cases, political struggle has been involved, but this hasn’t at all altered the necessity of the law. The content of that law has been absolutely indifferent: it has been the type of political power that has determined it. But one knows that the law is security for the citizen. What would become of the people without law? I do not dare think of it. Let us let the people give themselves their own laws, modify them as they please, and even fight to overturn the prescripts. The citizen must participate directly in legislative matters because, on that terrain, as on many others, desertion cannot be tolerated.

Yes to class conflict; yes to antagonisms of interests, especially radical and violent antagonisms, provided that they are expressed in the framework of juridical conceptions. Goethe’s maxim –

Laws and rights are inherited
Like a never-ending disease[19]

– is profoundly just and tolerates no exceptions.

I would like to conclude with several insights about crime and punishment. The most intelligent bourgeois jurists agree that violations of penal norms, far from constituting negations of the law or contestations of or concrete challenges to it, are in fact the law’s realization and apotheosis. It is only through violations that the norms, which are abstract, generic and impersonal, are materialized through applications to concrete cases. If this is true, then we must demonstrate our profound appreciation for all our illegalists, who, through their actions, make possible the functioning of the laws and their passage from the abstract to the concrete, and thus prevent them from remaining dead letters.

Violations of juridical imperatives, when they are kept to a limited scale, are useful, dear comrade, in that they permit the judicial apparatus to go into motion and thus prevent its mummification, and violations are completely indispensible when they take place on a vast scale, because they determine the evolution of the laws and the re-creation of those laws on modern bases.

Concerning the punishment to be inflicted upon an individual who commits a crime, we must not have excessive illusions about its re-educative function, despite what the Italian Constitution says.[20] The penal establishment must not constitute a place disposed to social vengeance nor an illusory center of reeducation. Prison must be an instrument of social defense, and the October Revolution,[21] at least until 1934, suppressed the concept of “punishment” and replaced it with the concept of “a measure for social defense.” How should we interpret this formulation today? Assuredly in the sense that imprisonment must not be a useless affliction upon the guilty party. Beccaria[22] noted that correct penal policy must leave unchanged the distance between civil society and prison, between freedom and the deprivation of it.

Prisons must impose an austere life, but one not too far removed from the life that one leads in society. The goals of the “measure for social defense” are not the humiliation of the prisoner, his illusory reeducation, or the isolation of the guilty party so as to prevent him from perpetrating a new crime. The prisoner must not be set apart from society – let us note in passing that the ancient institution of banishment was certainly more effective and less costly – but he must be obligated to continue to live in society, in a particular micro-society, it is true, but one only slightly different from the normal one.

Prison must remind everyone that escape from the free society of capitalism is not possible, and it must prevent the creation, not of criminals or violators of the law, but of renegades, deserters from social conventions, absentees from political and civil commitments, abstainers from democratic participation, and people who have disappeared, who are presumed dead or who cannot be found. This is the role of prison in periods of transition, and when its function has been fulfilled, and everyone has understood that escape from capitalism is impossible, then prison will no longer be necessary.

That is the battle, dear comrade, that we must fight on the terrain of the law, a terrain that is quite neglected by the young people, blind as they are by economism and politics. But it is fortunate that these very youths persist, despite themselves and unconsciously, to represent the juridical life and act accordingly, even when they decide to take the route of armed struggle, as you have.

The time has come for this instinctive attitude to become conscious; everyone must become aware that one cannot leave the law behind, especially when one violates it, and that escape is not desirable, due to the irreversible and definitive loss of future credit that is its cost. And a man without credit is like a blocked inheritance: it will never be converted into capital.

[1] Publisher’s note: This letter was sent to an imprisoned leader of a political formation dedicated to armed struggle. This is why we haven’t published his name. [Translator: possibly Renato Curcio, one of the founders of the Red Bridages, arrested and imprisoned in 1976.]

[2] Cf. Censor, Chapter IV, Truth Report on the Last Chances to Save Capitalism in Italy: “Moreover, we can reveal that, due to the worst possible choice of guilty parties – someone like Valpreda wasn’t believable as the perpetrator of the attack [at the Piazza Fontana in Milan on 12 December 1969], even if a hundred taxi drivers had, before dying, given a hundred statements for subsequent public display – as well as due to the manner in which the police and the magistrates behaved during the affair, we made this operation into a grotesque farce of misunderstanding and gloom that was more worthy of a South American dictatorship than a European democracy.”

[3] This would seem to be Frederick Nietzsche.

[4] The Italian here is scuola di energia.

[5] The Italian here is scuola di forza civica.

[6] Evgeny Pasukanis (1891-1937), author of The General Theory of Law and Marxism.

[7] Passed in response to the waves of protest and sabotage that broken out in 1977, these laws made “subversive association” and the possession of “subversive literature” crimes punishable by long prison terms.

[8] Greek in original.

[9] Rudolph von Jhering (1818-1892), author of Geist des romischen Rechts (“Spirit of the Roman Laws”), from which this quote was taken.

[10] Latin in original.

[11] French in original.

[12] Speech to the 11th Congress of the Russian Communist Party, which was held between 27 March and 2 April 1922.

[13] English in original.

[14] German in original.

[15] Latin in original.

[16] Latin in original.

[17] Movimento Sociale Italiano (Italian Social Movement), a neo-fascist organization.

[18] Latin in original.

[19] Spoken by Mephistopheles, Faust I. German in original.

[20] Article 27, Section 3 states: “Punishments may not contradict humanity and must aim at reeducating the convicted.”

[21] In Soviet Russia.

[22] Cesare Beccaria (1738-1794), an opponent of torture and capital punishment.

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