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Classical theories of criminal punishment were based on the continuous exchange of moral categories, which were evaluated through the reason, and, according to Nietzsche, it is the belief in the categories of reason that causes nihilism: ‘We have measured the value of the world by categories that relate to an imaginary world… In the end, all the values we have tried to present to the world have ensured its depreciation.’
As Nietzsche rightly noted, ‘any exclusively moral system of values leads to nihilism’. Meanwhile, the classical school of criminal law was an exclusively moral system, and this applied to both consequentialism and retributivism. A long attempt to reflect on morality without falling under its spell, without trusting the insidiousness of its beautiful signs and symbols, was not successful for European penal law. Morality played with the European penality the same way as sirens did with ancient Greek sailors in ancient mythology. At one time, the European penalty was enchanted by the sweet singing of morality, the consequences of which it is now struggling to overcome, facing the brutal pragmatism of the Postmodern penalty.
European penological theories and corresponding sentencing, prison, and probation policies, nurtured in classical traditions and based on relevant legends, myths, and political symbols, have always tried to win: a moral victory over the ‘criminal’, a theatrical victory over ‘crime’. Classical views were constantly searching for an answer to the question: how do we lay siege to ‘crime’ by ‘prevention’, ‘counteraction’ or ‘preventive care.’ This is reminiscent of a meeting of generals and general staff officers before a decisive battle that should put an end to this ‘enemy’ or at least ‘adversary’. Meanwhile, having enemies is the oldest human habit, and therefore the strongest human need. Therefore, as Nietzsche rightly noted, ‘what is punishable is never punished. Our crime against criminals is that we treat them as scoundrels’.
The issue of ‘free will’ is becoming even more acute. And this is against the background of the fact that at the same time in our society, ‘humanity’ has reached enormous proportions and seems to have filled the penal landscape to the maximum. However, all these attempts to ‘find and defeat’ the ‘enemy’ have always been characterised by a high degree of immorality. In a philosophical sense, we think Nietzsche reflected this best: ‘The victory of the moral ideal is achieved by the same immoral means as any other victory: violence, falsehood, slander, injustice.’ Modulating the above in the penological field, we can mention the problem of socialisation violence. It is this category that was actually the basis for the category of the concept of rehabilitation of dangerous deviants, which, in turn, serves as the purpose of punishment in any criminal code based on classical principles, despite the fact that there is often a substitution of concepts: when a criminal is required to change himself, he may declare such readiness, while all he is capable of is adapting to the conditions imposed on him.
That is why Marc Ancel, justifying the right of an offender to social rehabilitation, rightly emphasises that in the case of social rehabilitation of offenders, the state can take certain measures to return the offender to society, but it cannot encroach on the individual.’
Perhaps, traditional positivism, which is known thanks to such prominent personalities as Lombroso, Ferri, Garofalo, Drill, is even worse in this context. Just think of rehabilitation and A Clockwork Orange by Anthony Burgess and Stanley Kubrick. Total victory over the criminal. The criminal is ‘crushed’. But by what means? And at what cost? We must pay tribute to this: Positivism never put ‘morality’, behind the screen of which the classics have always been disguised, in the first place, and it appears that it did not particularly care about it, and did not even hide its contempt for it.
For example, being an advocate of classical views on the goals of punishment, paying much attention to the intimidating and deterrent effect of punishment and criticising the views of representatives of the positivist school, Sorokin, nevertheless, sometimes actually admits to his openly positivist views on the nature and purpose of punishment: ‘Summing up the evolution of punitive measures, we can say that the formula of this evolution is the movement from infinitely cruel and bestial murders, from punishment in the form of painful mutilation — to isolation without suffering and deprivation of the possibility of committing new crimes.” The last phrase, in our opinion, speaks for itself. In addition, Sorokin, criticising positivism, nevertheless points out ‘the failure of certain punishments that try to “erase” a series of actions.
Therefore, we cannot but pay tribute to Nietzsche in his assessment of the category of ‘correction’, which has always been associated with morality: ‘The general deception and self-deception in the plane of so-called moral correction. We do not believe that a person can become different if he or she is not different… The appearance changes, but not the essence. Those who become criminals by coincidence and inclination do not unlearn anything, but learn something new… For society, of course, it is only of interest that someone does not commit certain acts anymore; society removes him for this purpose under the conditions under which he can commit certain acts… The delusion of religious superstition: punishment does not atone, forgiveness reconciles, what is done cannot become undone… A method of psychological minting of a false coin.’
One cannot but agree that ‘the basis of all European morality is the benefit of the herd’. That is why Nietzsche’s opinion that ‘the attempt to “humanise” (which has naively resolved the question of what is “human”) is a tartuffism under the guise of which a certain kind of people is trying to gain dominance’ is very fascinating. This is in line with Foucault’s modulating concept of the deeply hidden causes of the change in penal formations, where ‘humanisation’ served only to divert attention from the true causes of this transformation of penalty. To paraphrase Nietzsche, it was ‘an interest in establishing a certain morality’, which confirms his thesis that it is necessary to ‘defend virtue from the preachers of virtue’, since they are ‘its greatest enemies’. As for the ‘purposes of punishment’, ‘everything that is done for a certain purpose can be reduced to the purpose of increasing power’.
Summing up the above, it can be noted that understanding the essence of the transformation of post-modern penalty requires not only the analysis of certain formalised data, which is mostly relied on by modern legal science. We believe that understanding postmodern penalty is associated with attempts to feel the spirit that actually characterises it. This spirit can only be felt through the prism of the most critical analysis of the morality of classical views on punishment, its content and goals, which have become more than conservative today and are trying to firmly control the penological landscape, without even noticing how clumsy they are in this status.
The European penal culture of the postmodern era is deeply nihilistic. The morality of the classics has evaporated or almost evaporated, but it was this morality that ensured its rather vivid vitality for more than two and a half centuries. Considering that ‘scepticism towards morality is decisive’, we can state that ‘ultimately we have nihilism’.
What has been the engine of European penality for more than two and a half centuries was based on a culture centred on the human being as a rational being, a person who freely makes rational choices (except when outbreaks of biological positivism and medical rehabilitation lit up the European penal landscape). Therefore, when analysing the transformation of European penalties, one can feel the tension that characterises classical theories of social control, which are increasingly moving away from the pragmatism and rationality of punitive and disciplinary practices of the Postmodern era.
It may be recalled that it was not ‘humanisation’, but pragmatism barely covered by ‘humanisation’ that forced European countries to create what is nowadays called the ‘penitentiary system’ and ‘penitentiary policy’. Imprisonment appeared not because of ‘humanisation’ and ‘central authority’, but because capitalism felt an acute shortage of disciplined subjects and the need for a developed system of control over these disciplined subjects (and even more so over undisciplined subjects), and thus for ‘factories’ for reproducing such discipline and mechanisms for collecting and accumulating relevant information.
The dominance of Western penological over-optimism and bright European penological concepts that have not become axiomatic is currently having a negative impact on the study of the essence of modern social control and poses a danger to both freedom and the actual protection of society (especially in the area of formulation and implementation of penitentiary policy).
Therefore, it is the twenty-first century that has forced us to recognise the lack of methods for understanding the nature of deviant/criminal behaviour and exercising social control over such behaviour.
This recognition has caused and continues to cause pain to the spirit of prideful over-optimism that has characterised Western penal culture for the past two and a half centuries. Therefore, continuing the thought of Dominique Venner, it is necessary to emphasise that in the society of the twenty-first century it would be wise to reject ‘blissful illusions’ about the goals and essence of social control. It will be useful to apply active pessimism.
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