Georg Rusche and Otto Kirchheimer: Punishment and Social Structure

265

Georg Rusche and Otto Kirchheimer:

Punishment and Social Structure
Dario Melossi*

I.

Social Structure was mainly the conception of Georg

Rusche, one of its two authors. In order to shed some light on the quite
knotted origins of this book, it is necessary to begin with a biographical
account of Rusche, the less-known collaborator in the Frankfurt Institute of Social
Research during the 1930s.1
Georg Rusche was born in Hanover on November 17, 1900, the son of a physician
(also named Georg Rusche). In Hagen (Westphalia), Rusche spent his childhood and
completed his early education. Subsequently, he studied law, philosophy, and social
science abroad (in Paris and London),2 and attended several German universities,
including Mnster, Gttingen, Cologne, and Frankfurt. Among his teachers were
Leonard Nelson, Max Scheler, and Erwin von Beckerath. In 1924, he graduated
from Cologne University with a degree in philosophy, having written his thesis
on legal philosophy.3 Again in 1929, he completed a course of study at the same
university in economics and social science, with a thesis on the fundamentals of
economic theory.4
At the same time, he had gained experiences in prison work and social work.
It is highly probable that Rusche conceived of the very project of Punishment and
Social Structure (hereinafter P&SS) during this period, in the course of rethinking
these experiences and connecting them with the wide theoretical background he
had previously acquired.5
In 1931, he submitted a research proposal concerning the relationships between
punishment and the labor market for the consideration of the Frankfurt Institute
of Social Research.6 The initial fruits of Rusches research were published in the
Institutes journal in 1933,7 wherein all of the theoretical milestones of P&SS
were articulated in an essay that may well be considered a programmatic writing.
unishment and

* Dario Melossi is professor of criminology in the School of Law of the University of Bologna;
email: dario.melossi@unibo.it. His current research concerns the process of construction of deviance
and social control within the European Union, especially with regard to migration processes. This is
the English version of the first part of the introduction to the Italian translation of Punishment and
Social Structure, edited by Dario Melossi and Massimo Pavarini, published in 1978 by Il Mulino
(Bologna, Italy). A new edition of Punishment and Social Structure, with an introduction by Dario
Meloissi, was published by Transaction Publishers in 2003. This article was first published in Crime
and Social Justice 9 (Spring-Summer 1978).

Social Justice Vol. 40, Nos. 12

265

266

Dario Melossi

But in this very period, Hitler seized power in Germany. The Institute was
obliged to close down and set out on that twisted pilgrimage that ended some years
later at Columbia University in New York.8 The various members of the Institute
were forced to migrate, and some embarked for the United States at once. Others
took refuge in European countries such as Great Britain and France. Although
between 1937 and 1938 most of these joined the others in New York, Rusche was
not among them. He experienced years of difficult exile as he was driven first from
Paris to London, then to Palestine, and finally back to London.9
While in London, Rusche led a tenuous existence; his efforts to obtain financial
help came to naught in the harsh economic conditions of the war. He received
no assistance for his pressing needs from the New York Institute either, with the
exception of some letters of recommendation from Max Horkheimer.10 In his
correspondence with Horkheimer, Rusche writes of his intention to continue his
research, the investigation of Nazi criminal policy and, more broadly, the relationships
between German monopoly capital and dictatorship.
Rusche left Palestine and when the war broke out in 1939, he was interned in
a camp in Great Britain (probably due to his German citizenship), where he was
compelled to stay until the beginning of 1941, as we discover from his letter to
Horkheimer cited above. As he was being transported to Canada, the ship on which
he was traveling was torpedoed and he was consequently brought back to Great
Britain. He remained there until at least March 15, 1941 (the date on the last of his
letters, six weeks after his release from the internment camp). In the torpedoing, he
lost all of his belongings, but it was the loss of a manuscript, a sort of personal and
intellectual autobiography, that he regretted the most. At this point the information
I have obtained on Rusches life comes to an abrupt halt.11
Before going to Palestine, he had completed the manuscript of P&SS. However,
the New York Institute decided that it must be reworked and expanded to cover the
contemporary situation. Another of the Institutes members, Otto Kirchheimer, was
charged with that task. Kirchheimer, who was both legally and criminologically
trained,12 widened Rusches analysis to encompass the Nazi and fascist period,
reworked the whole original manuscript and translated it, with the help of M.I.
Finkelstein,13 in 19371938. That is why, as Horkheimer states in his preface
to P&SS, chapters II to VIII reflect mainly Rusches original outlines, while the
introduction and chapters IX to XIII are Kirchheimers original addition. As we
shall see, this double writing of the text generated a number of problems, for
Rusche did not seem enthusiastic about the work of his coauthor, with whom he
had probably not even discussed the contents of the book.14
P&SS is the first book of the new American series of the Institute, as Horkheimer
states, and is also the first Institute publication to appear in the English language.
After a long while in which the work had been virtually ignored, its popularity
began to spread during the mid-1960s, aided by publication of the new American
edition and then of the German translation.15

Georg Rusche and Otto Kirchheimer: Punishment and Social Structure

267

II.
On the specific theme of prisons, P&SS proceeds along the main lines of development
of the bourgeois age, looking at them from the standpoint of the Frankfurt School.
Notwithstanding some schematism and an attachment to some positions inside the
School over others, the book consistently shows the characteristic features of the
social research worked out from that standpoint.
When Max Horkheimer was appointed director of the Institute in 1931, the aims
of future research came to center on a thorough critique of the social phenomena
specific to the bourgeois age.16 This was to culminate in a theory of the historical
course of the present age.17 Horkheimers program embodied an obligation to
pursue the kind of social research that would reinstate Marxs holistic view by
spreading the analytic capability of Marxism over the whole array of social facts.
According to Alfred Schmidt, this method was intended to fulfill a twofold purpose.
On the one hand, it provided a means to overcome the antipositivist reaction of
those neo-Kantian tendencies that hypostatized a world of values proper to the
sociohistorical sciences. On the other, it attempted to counteract the prevalent
tendency to reduce Marxist research to a series of laws of social evolution, which
resulted from the dogmatic, Stalinist reading of Marxism during the period of the
Third International.18
Within this context, it was the transition from competitive to planned capitalism
(or monopoly capitalism) that first came to be focused upon, and that increasingly
came to constitute the fundamental theoretical object of the School. Even though
the School did produce economic studies,19 the primary object of inquiry became
the changes induced in the bourgeois cultural world within this overall process. The
research conducted in Frankfurt centered upon the manifestation, management, and
rationalization of the crisis of culture during this transition, examples of which are
the studies on the family and the authoritarian personality.20 The means by which
the empirical findings resulting from these studies were to be interpreted resided
in the spheres of history and political economy.21
The research carried out by Rusche and Kirchheimer on the topic of prisons
must be located within the context of this overall project. As Rusche writes in his
programmatic article of 1933:
There can be no doubt that modern criminology, partly encouraged by
psychoanalysis, has provided us with valid knowledge especially of the
individual and social origins of crime and of the socio-psychological
functions of punishment. This research, nevertheless, lacks the basis of
all real social knowledge. It does not stand in relation to economic theory,
and hence, is not rooted in the material base of society. Moreover, it
dismisses any kind of historical foundations. This means that it implies
an invariability in the social structure that does not exist in reality and
that, lacking an awareness of this, it absolutizes the observers present

268

Dario Melossi
social conditions. In such a way, an inquiry into social change and into
the historical effects of it are precluded. Whereas if we make use of a few
simple economic concepts and do not assume a static situation in class
relationships, but rather root our research in their long-run transformations,
it becomes possible to push our inquiry into the social function of crime
and punishment far beyond the point it has reached to date.22

The main object of their work is the specific form that punishment assumes
during the bourgeois epoch: imprisonment. The central category they employ in
addressing the history of detention within this epoch is the principle of less eligibility.23
Briefly, this principle functions in relation to the state of the labor market. It posits
that the standard of living within prisons (as well as for those dependent upon the
welfare apparatus) must be lower than that of the lowest stratum of the working
class, so that, given the alternative, people will opt to work under these conditions
and punishment will serve as a deterrent.
The emergence of the prison is then outlined from its roots in mercantilism
to its elaboration and eventual generalization during the Enlightenment. In light
of this fundamental structure of Rusche and Kirchheimers work, it is critical to
address the following question that it raises. The use of the category labor market
can account for the introduction of imprisonment at a specific historical moment,
and can account for the changes within this mode of punishment, but it does not
completely account for the adoption of imprisonment per se by the new society
arising from the ruins of feudalism. A firmer grasp on the reason for the adoption
of this penal innovation, I would argue, is provided by the category of discipline,
which speaks to the specificity of bourgeois punishment. The concept and practice
of discipline came to be the essence of capitalist work management as it took shape
in this period. The spread of discipline out of the factory represented at the same
time the spreading of capitalist management over the entirety of bourgeois social
relationships, or, likewise, the making of a bourgeois human type by means of the
reproductive mechanisms of labor power.24 The actual creation of the prison, then,
as the punishment particularly fitting the period of classic capitalism, finds its
origins and life in the process of transition from absolutism and mercantilism to
liberalism.
It is noteworthy that this approach to the question was not at all unfamiliar
to the School, as is indicated in the work done there in those years. The strong
influence of Freudian and Weberian thought in particular led their inquiry toward
the analysis of the links between the making of a bourgeois social order and that
of a bourgeois culture. This becomes clear when we take into consideration some
historical essays such as Herbert Marcuses contribution to the Studien ber Autoritt
und Familie and Max Horkheimers article, Egoismus und Freiheitsbewegung, in
the Zeitschrift fr Sozialforschung (1936). It is to these works credit that they were

Georg Rusche and Otto Kirchheimer: Punishment and Social Structure

269

able to link the bourgeois concept of discipline (and what this means culturally)
with the changes in the capitalist management of work. This much, as a matter of
fact, cannot be said of Michel Foucaults latest book, Surveiller et Punir.25 Here
this link is turned upside down, and the concept of discipline (descended from the
Heaven of Ideas?) seems to be applied to the capitalist management of work to
the same degree as it is to prisons, schools, army barracks, and so on, in short, to
the various institutions the bourgeoisie has been creating since the period of its
origins. The connections between these institutions, under the overarching category
of discipline, are certainly real, but the point is that this very category is itself
produced within the context of the bourgeoisies need to organize and manage the
work process in a capitalist way.26
The lack of determination in the category of discipline seems to be the root of a
certain broad vagueness in Foucaults concept of Panoptisme, which is characterized
as the modern form of social control. This concept has been effectively criticized
by Massimo Cacciari, who notes that Foucault has hypostatized Benthams utopia,
Panopticon, into a universal metaphor, to express power in the bourgeois epoch.27
This results in two relevant consequences: first, the theoretical ground upon which
real power rests, class struggle, is shaken; second, the articulation of Benthams
utopia among the various institutions and along its historical course becomes
very difficult, because its very rootsa determined capitalist organization of
productionhave been swept away. This last point takes on critical importance
when we approach the conditions of contemporary capitalism.28
The rise of a bourgeois concept of time, as the abstract and general measure
of the value of commodities, made possible the formalization of a practice that
bourgeois society had already been engaged in for two centuries, but that only
became finely honed during the Enlightenment: the establishment of the principle
that the punishment meted out should be proportional to the given crime. What
the crude Amsterdam merchants had discovered so much earlier in the process of
their practice was the principle that Marquis Cesare Beccaria would transmit to
history and literature.
A Soviet author, E.B. Pashukanis, had recognized this fact in a much more
precise way than finds expression in P&SS. Rusche and Kirchheimer, it seems,
did not use and probably did not know of Pashukaniss work, which would have
enriched their own analysis. Pashukaniss major work, The General Theory of Law
and Marxism,29 was published in 1924 in Russian and translated into German some
years later. Georg Rusche could thus have known of it, but Pashukaniss name (or
for that matter the names of other contemporary Soviet Marxist writers) is never
cited. When we compare Rusche and Kirchheimers analysis of the Enlightenment
period and of the emergence of the relationship of crime to punishment with that of
Pashukanis, it is clear that the latter deepens and strongly underpins the investigation
of this critical period of bourgeois penal history:

270

Dario Melossi
Deprivation of freedom for a definite period indicated in advance in the
sentence of the court is the specific form in which modernthat is to say, the
bourgeois-capitalistcriminal law effectuates the principle of equivalent
requital. This method is closely (though unconsciously) associated with
the idea of the abstract man and abstract human labor measured in terms of
time.... A condition precedent to the appearance of the idea that accounts in
respect of crime could be settled by a predetermined quantum of abstract
freedom was the reduction of all the concrete forms of social wealth to
the simplest and most abstract form of human toil measured in terms of
time.... Industrial capitalism, the declaration of rights of man and citizen,
the political economy of Ricardo, and the system of terms of confinement
in prison are phenomena of one and the same historical epoch.30

This concept is essentially expressed in the twenty-second paragraph of

Beccarias Dei delitti e delle pene, which was dedicated to the discussion of theft.
The central role of value in the determination of the principle of proportionality
between crime and punishment was already stressed in the writings of Hegel and
also in those of the young, still Hegelian, Marx.31 It is not surprising that even the
brightest bourgeois theorists could not understand the essence of Pashukaniss
argument. Thus, in his The Communist Theory of Law,32 Hans Kelsen asserts that
Pashukaniss theory is an absurd view and a plain repetition of Aristotle. On the
contrary, the remark by Pashukanis that receives the greatest emphasis addresses
how the general principle of equivalent requital (historically stated by Aristotle
among others) operates under the specific conditions of capitalist rule. But of course
this is precisely what Kelsen cannot comprehend, anxious as he is to defend the
entirety of bourgeois legal ideology.33 As a matter of fact, Kelsens criticism is a
good example of fetishized thought in the realm of the criminal law, because he
assumes as natural a given relationship between crime and punishment in terms
of time, which prior to the capitalist mode of production would have appeared
profoundly absurd and unfeasible. This way of thinking projects the features of a
definite epoch upon the entirety of the historical process, ignoring the huge leap
and the deep changes that the bodies and minds of men underwent due to the sway
of capitalist rule.
Within this overall framework, we can perhaps better understand the critics of
P&SS who argue that the book is affected by economism.34 If this work is marked
by some limitations, they certainly reside in the realm of political and ideological
matters. P&SS does not claim to be historically complete. It does attempt, however,
to draw out the main lines of the relationship between punishment (during the
bourgeois age) and the social structure (determined on the basis of economy and
history, as Rusche states in the above-cited article). Any claim to completeness thus
is rejected, both vis--vis the historical research and its object, i.e., not the prison
in general, but rather the relationship between punishment and social structure.

Georg Rusche and Otto Kirchheimer: Punishment and Social Structure

271

The object of the research is not, in fact, penal and legal theory, or even an inquiry
into the inner ideological aspects of the prison as an institution, as an asylum.
Is then, the specificity of the prison not grasped due to the very determination of
the objectthe relationship between penal processes on the one hand, and history
and economy on the other? I do not believe so. Rather, the question lies in the way
we address the issue of this relationship, a way that must also enable us to account
for ideological facts.
We return, then, to the problem I have already emphasized: namely, the category
of the labor market. This critical category utilized by Rusche manages to reduce that
very complex phenomenon that constitutes the making of a bourgeois mankind by
means of those social institutions that are ancillary to the factory. Economism is not
implied, then, in the linking of penal issues with historical, economic, and social
facts, as Rusches original program aimed to do.35 Rather, it is in the elaboration
of the programs contents that the reduction of an extremely complex relationship
takes place by making it a mere function of the state of the labor market. Thus,
even though the concept is useful, it is not fully sufficient.
All of this becomes quite clear whenever P&SS deals with the relationship
between the general ideology characterizing an epoch, and the specific penal
ideologies that correspond to it. For example, the transition from the religious
concept of the Middle Ages to that of Protestantism and the changes effected in
charity practices; the continuing relevance during the Middle Ages of the criminal
canonical law of the Church; the deep connection between the practice of confinement
during the rise of capitalism and its theoretical rationalization in the thought of the
Enlightenment; the stubborn persistence of the prison institution after the creation
of the surplus population by the Industrial Revolution had rendered it useless, at
least by strictly productive criteria; these and other critical historical points pertain
much more to the inner structure of the prison institution, as a section of a broader
bourgeois program, than to changes in the labor market. The changes in the labor
market may account for the surface phenomenology of our question, but it does
not penetrate to the core of the matter.
Nevertheless, the conclusion must not be drawn that these two concepts are
contradictory. Historically, they have always been integrated, and we must deal
with them as such. The labor market has been crucial in the determination of class
power, at least up to the appearance of those modern capitalist policies that affect
the labor market. The proletariats capacity to resist has always been in direct ratio
to its strength in the labor market. This resistance has essentially been resistance
against capitalist management, against the discipline imposed by capitalist authority.
It becomes clear, then, that the category of labor market has been able to define
that of discipline historically. Put another way, in that discipline has historically
been linked with the evolution of capitalist management, it is also a function of
that class struggle that is at the root of productive changes, wherein the situation
of the labor market plays a very important role indeed.

272

Dario Melossi

The first conclusion we draw is that where there is shown to be economism

in P&SS, it is not produced by a lack of consideration for ideological issues that
as a bourgeois, critic might maintainshould be eclectically juxtaposed to the
economic driving forces. This economism is produced, however, by flaws in the
analysis of the structural roots of our object, which emanate from the incomplete
inscription of punishment into the scientific categories of Marxism. The concept
of labor market once again fails to give us a full accounting for the invention of
the prison and its structure, whereas it is really effective in keeping track of the
history of imprisonment, once the concept of punishment through detention is taken
for granted. The production of a new mankindthe reproduction of that specific
part of the capitalist mode of production constituted by variable capitalthat is
at the core of the invention of the prison (but that is certainly not limited to it), is
obscured in the analysis provided by Rusche and Kirchheimer.
III.
These issues become even more apparent with respect to the last section of the
book, from the ninth chapter onward, in the section written by Kirchheimer.
Chapters II to VIII, indeed, carefully follow the course of Rusches fundamental
hypothesis, a fact that is linked not only to the obvious fidelity of the author to his
own hypothesis, but also to more substantial reasons. Rusches main outline of
the relationship between the prison and the state of the labor market is conceived
and elaborated within the historical period I have already pointed to, that is, up to
the onset of modern capitalism. During the second half of the nineteenth century,
however, enormous changes took place within the capitalist social and economic
structure. The making of a working-class movement, the intervention of the state
in labor matters, as well as the first manifestations of monopoly capital, all deeply
affected the traditional features of capitalism, including, last but not least, the
automatism of the labor market.
As I will make clear in the next section, the effort to develop Rusches main
hypothesis further required that Kirchheimer confront this overall problematic. He
does this, quite poorly indeed, in the ninth chapter of the book. In that chapter he
links the success of the penal reform movement in the period spanning 18801930,
the decrease in the rate of imprisonment, and the improved conditions within
prisons with the rising role and power of the working class, at least with regard to
the most developed capitalist countries. But here his analysis stops, and he turns
instead to the investigation of the political and institutional outlines of the penal
question inside the totalitarian states of the 1930s.36
This different object of inquiry upon which Kirchheimer focuses his attention
brings the economism of the whole work to the fore to an even greater degree.
While Rusches concept itself has the effect of partially obscuring the entirety of the
linkage between the productive sphere and punishment, this limitation becomes even
more apparent in the last section of the book, where the category of labor market

Georg Rusche and Otto Kirchheimer: Punishment and Social Structure

273

hardly operates. And it is precisely that section wherein the inquiry becomes highly
problematic.37 Kirchheimers interest certainly centers upon the new, sweeping
change that marks the transition from competitive to monopoly capitalism, but it is
viewed and operationalized in a completely different way and taken in a different
direction than the way in which Rusche had proceeded.
Within the Schools framework, Kirchheimer devoted himself to the study
of the crisis in the Weimar Republic and of the rise to power of the Nazi Party.38
In so doing, he found himself closer to other Frankfurt personalities who shared
with him some kind of legal training, such as Franz Neumann, than to the leading
members such as Max Horkheimer and Theodor Adorno. In his valuable work,
Martin Jay shows how these differences were not at all casual, but rather were
rooted in the different approaches to the analysis of totalitarian regimes, as the
polemics surrounding Neumanns book, Behemoth, make clear.39
Upon arriving in New York after three years of exile in Paris, Kirchheimer
reworked Rusches manuscript and wrote other essays on the evolution of the German
legal system, and particularly on the criminal justice system after Hitlers seizure of
power.40 The main concepts in his analysis, however, are already expressed in his
lucid 1930 essay on the Weimar constitution, a constitution that he defines as ohne
Entscheidung (without decision).41 A Marxist militant inside the German Social
Democratic Party and, at the same time, a disciple of Carl Schmitt, Kirchheimer
views the ruin of Weimar as marked from the beginning by its inability to cope with
the need to be decisive and to command the emergency situation, in drftiger
Zeit. The result of a compromise between the old liberal principles and the social
demands of the defeated postwar German revolution, the Weimar constitution is
impotent vis--vis the effects of the rise of monopoly capitalism, which wiped out
the base of conventional liberal democracy in its wake. Moreover, the social
section of the constitution is nullified by the defeat of those left forces that had
backed it. Manifestly, what Kirchheimer means here by Entscheidung, decision, is
the capability to build an institutional framework that could conclusively overcome
the old liberal one, exercise its command over monopoly capital, and, hence, drive
the whole social structure toward a socialist end.
After the defeat of the working-class movement that, since the Germany of
Emperor Wilhelm II, had been the only actual pillar, the real core of bourgeois
democracy,42 and after the consolidation of the monopoly structure, the breakdown
of liberalism represents at the same time the demise of the main principles of
bourgeois legal and penal ideology. Kirchheimer examines this process both in his
section of P&SS and in the two articles written for the Schools journal. In them,
he links the legal decisionism, a hallmark of the age of advanced capitalism,
with the rise of those legal theories that will form the theoretical background of the
Nazi criminal law. The parceling of general and abstract law into a multiplicity of
administrative rules parallels the transition from a classic liberal economy, where
many productive units are unable to affect the market, and where power is more

274

Dario Melossi

equally and anonymously disseminated (at least, as maintained by liberal theory)

to a society and market where power is firmly held by a few political-economic
centers.43 The law, then, has been transformed into a set of administrative rules
and no longer aims at a generality of subjects, but at the specificity of an individual
one. Kirchheimer depicted the irrationalism of penal theories between the
1920s and 1930s simply as a trend within law to develop in accordance with the
real inequality of the governed. It is the acknowledgement of this inequality that
calls forth a new legal method rooted in the intuition of the individual case. It is
not the equal application of the law of the great French Revolution, but rather the
command of monopoly capital (or of state capitalism) that forms the basis for the
authoritarian criminal law, developed in accordance with the intuitionism of Kiels
phenomenological school as the definitive end of the Nazi criminal law when it
abandoned the earlier volitional doctrines.44
Although intuitionism is the ideology, Kirchheimer clearly shows that this does
not at all mean the liberty of the judiciary, even though, as Baratta writes,45 this
constituted one of the main tools with which the fundamental principles of legal
positivism had been gradually destroyed during the Weimar period. Intuitionism is
merely the ideological concept that allows political and economic power to bring
the legal system into its fold. The judges intuition is not freely conceived by
the judge himself, but is derived from administrative orders, via the concepts of
Volksgeist (peoples spirit) and of the Fhrerprinzip (leadership principle): from
the top of the increasingly intertwining state and Nazi Party.46
This process, writes Kirchheimer, unfolds through a number of different steps.
First, he describes an extreme verticalization of the judiciary, made possible by the
increased power of the Oberreichsanwalt47 and the open intervention of political
and administrative agencies into the competence of the courts.48 Furthermore, this
process is realized through the increasing delimitation of the legal competence of
the judiciary, together with the administrativization and departmentalization of
criminal justice: The National Socialist Party, the Gestapo (secret political police),
special administrative units such as the SS (Schutzstaffel), the army, the compulsory
Labor Service, and the special court on political crimes, each is furnished with
an exclusive penal competence of its own, relating to matters, to the subjects, or
simply relying on the practice followed.49
What is developing, then, is a process that Kirchheimer defines as rationalization
(Rationalisierung, scientific management) of the criminal law:
Rationality here does not mean that there are universally applicable rules
the consequences of which could be calculated by those whom they
affect. Rationality here means only that the whole apparatus of law and
law-enforcing is made exclusively serviceable to those who rule. Since no
general notions prevail which could be referred to by the ruling and the ruled
alike and which thus might restrict the arbitrariness of the administrative

Georg Rusche and Otto Kirchheimer: Punishment and Social Structure

275

practice, the rules are being used to serve the specific purpose of those
ruling. The legal system that results is rational for them only. This, then,
is a strictly Technical Rationality which has as its main and uppermost
concern the question: How can a given command be executed so as to
have the maximum effect in the shortest possible time?50
After this passage, Kirchheimer quotes from a speech by a writer on criminal
law, Hans Frank, Reich Minister and president of the Academy of German Law and
Governor General of Poland. In this speech, Frank, having compared the smooth
running of the state administration to the functioning of a good machine, proceeds
to demand the introduction of Taylorism into the realm of statecraft in order to get
the most precise answer to the question as to how the will of the political leadership
can be put into practical effect as speedily as possible.51 Jay notes in this regard that
the analysis of National Socialist law is connected with a leitmotiv of the Frankfurt
School, the struggle against the Weberian principle of technological rationality as
opposed to rationalism (and this includes legal rationalism). In those very years,
Horkheimer wrote: Fascists have learned something from pragmatism. Even their
sentences no longer have meaning, only a purpose.52
In this way, the inquiry into the crisis of the Weimar constitution and its resolution
into the National Socialist new order, which Kirchheimer had begun nine years
earlier, came to an end. Weimars indecision had reaped the destruction of democracy
and resulted in the rise of a new command center unifying monopoly capital and
the Nazi state. The last chapters of P&SS, written during the first, hard years of
exile just prior to World War II, are inscribed within this scope. Beyond this scope,
then, is the investigation into punishment within our contemporary social structure.
IV.
Punishment and Social Structure has been completely ignored for many years,
surprising enough considering its unquestionable value, but further with regard to
the currency of other criminological classics that are far less deserving. It may
not be so surprising, however, if we take a closer look at the state of criminological
studies and at the degree to which this science, in its very roots, has been a tool
of power. In fact, it is not by chance that P&SS has come to be focused upon in the
last few years. Its rediscovery must be understood in terms of the critical positions
arising within the criminological scope in the attempt to elaborate a Marxist analysis
of criminal and penal social facts.
Today, a discussion of P&SS cannot fail to address the question of its capacity
to account for contemporary events. Or, as Rusche liked to put it in 1933, we
should face the question of whether it is necessary to abandon that simple heuristic
maxim that resulted in so many correct research findings53 when analyzing the
contemporary age. This, as we have already seen, is precisely the question not
answered in the final chapters of the book written by Kirchheimer. The question,

276

Dario Melossi

in my opinion, could be expressed again in the following terms: do the long-term

changes that have been appearing in some of the main features of punishment
correspond to a different state of the labor market in contemporary capitalist
society (as an extension of Rusches hypothesis would lead us to believe), or do
they correspond to deeper social transformations, and, as such, call into question
the relationship of punishment and social structure as it was defined within the
origins of the capitalist mode of production?
In a recent article, Ivan Jankovic grapples with this question in the only serious
attempt to discuss the central hypothesis in P&SS.54 This article deals with the trend
of punishment in the United States from 1926 to the early 1970s. One result of his
study is a critique of Rusche and Kirchheimers assumption of a steady decline
in the use of imprisonment as a means of punishment within advanced capitalism
and, above all, of their hypothesis that fines would increasingly come to be the new,
typical punishment. Jankovic grounds his critique in the fact that imprisonment
and probation constitute the most frequent sentences for criminal conviction in
the United States today. I would like to stress the point, however, that Rusche and
Kirchheimer do not take a definitive position on the trends concerning the penal
system contemporary to them, with the exception of Kirchheimers arguments
regarding fascist countries. They acknowledge the decline in the prison population
in the most developed European countries,55 coupled with a rising use of fines. They
connect these facts with the improved economic conditions of the lower classes
between the end of the nineteenth century and the years of World War I. Since
Jankovic accepts these facts unquestioningly, his criticism can merely indicate that
after 1926, matters in the United States differed slightly.
It is important to reassert that Rusche and Kirchheimer do not put forward a
theory that attempts to explain the twentieth century, at least not to the same degree
that they do for the previous period. This lack of a consistent theory on their partor,
more precisely, of a clear and actual extension of their theory to cover the twentieth
centurymust be attributed to the scope of Rusches original program, which
spanned the period from the breakdown of feudalism to laissez-faire capitalism.56
The quite simple and mechanistic relationships between the state of the labor
market and the use (or nonuse) of coerced labor outlined in Rusches hypothesis can
hardly be applied to the era of monopoly capitalism and the Keynesian state, when
among other things, the rise of a strong unionism challenged the automatism of
the labor market, which has been one of the targets of the workers movement.57
Alternatively, the difficulty does not lie, as Jankovic seems to think, in Rusche and
Kirchheimers linking of imprisonment with the profitability of coerced labor,58
because the connection is only referred to in P&SS with regard to a particular stage
of capitalism, which is governed by a scarcity of labor power.59
In my opinion, Jankovics hypothesis is not antagonistic to that of Rusche
and Kirchheimer, but complements it in terms of space and time. Connection and

Georg Rusche and Otto Kirchheimer: Punishment and Social Structure

277

covariance (to the degree that this relationship can be expressed mathematically)60
between imprisonment and unemployment rates tell us neither anything new in
particular vis--vis the main question at issue, nor anything strictly specific to the
conditions of advanced capitalism. Why wouldnt this connection and covariance
be just as true with respect to capitalist societies other than the United States in
the twentieth century? Rusche and Kirchheimers main hypothesis may also be
true within a rigid connection between the rate of unemployment and the rate of
imprisonment, because it is essentially qualitative, not quantitative. It aims to
account for the nature and character of punishment, not for its magnitude.
For instance, when Rusche addresses the problem of the origin of prisons in
Holland and northern Germany of the early seventeenth century, the root of the social
question he tries to grasp is certainly not the occurrence of mass unemployment,
because during the long crisis of the feudal mode of production, the unemployment
problem had been dealt with in a completely different way, by means of the
widespread practice of corporal and capital punishments. Only with the change in
the state of the labor market (and when the rise of a new mode of production had
matured) did those very few for whom the houses of correction were to be built
begin to be viewed as particularly valuable human capital. Once again, the question
of the origin of the prison as such is basically different from that of the relationship
between imprisonment and unemployment rates.
This is also true when we take a closer look at another critical point in P&SS,
the Industrial Revolution, and the making of a huge industrial reserve army,
which gradually formed in the various capitalist countries.61 Rusche does not
argue that punishment once again becomes irrational in these conditions, which
no longer allow for the exploitability of coerced labor. All in all, Rusche takes
the same positions as those stated by Jankovic as an attempt to develop him.62
Rusche holds that within the changed conditions of the labor market, any form of
productive work within prisons is useless and unfeasible, whereas the deterrence
principle tends to come to the fore once again.63 By then, the control over the
working class by the prison institution is compelled to take new shapes. But neither
Rusche nor Jankovic tells us why this control should keep working within the
essential structure of imprisonment (and its related legal superstructure). Rusche
realized this question and tried to push a few vague and unconvincing cultural
motives, which are supposed to account for the reason why a penal system of the
medieval kind was not reinstated at that point.64 What we find wanting once again,
then, is an analysis of the function of reproduction of labor power that is fulfilled
by the institution, a function strictly tying the prison to the form (or figure) of
the factory, and to discipline as the capitalist management of labor. Lacking this,
Rusche cannot acknowledge that the firm hegemony already achieved by capitalist
social relationships in early nineteenth-century Europe calls forth the extension of
imprisonment as one element within the overall extension of those relationships.

278

Dario Melossi

Moving from this standpoint, we can address our question, the fate of
imprisonment in advanced capitalism. The history of prisons thus appears to be a
particular chapter of a more general history, that of the making and the reproduction
of the working class. But these concepts are in no way defined once and forever
within the capitalist mode of production. They are governed by these productive
relationships as they have been shaped under the cudgel of class struggle.65 Insofar
as we can locate prisons within this history, the better can we comprehend the
tendencies and rationales of that institutions specific history. The changing of these
capitalist production relationships in the course of the twentieth century, in fact,
challenges the very basis of imprisonment. This manifests itself in the long run as
a decline in the use of imprisonment and as a concomitant rise of new means of
control, whether or not these are linked with a legal/social labeling of delinquent
and/or criminal activity. Within this process, those functions originally fulfilled by
the prison come to be performed by other social institutions in a better and wider
way. At the same time, the changes in that social model upon which the prison had
been shaped, mainly the capitalist management of labor, make the institution, in its
deep structural core, both obsolete and incapable of fitting its primitive functions.
In my opinion, this is the main reason for the decline in the use of imprisonment
to which Rusche and Kirchheimer point in many European countries between the
second half of the nineteenth century and the first half of the twentieth century.66
A decline in the daily average prison population takes place regardless of whether
it stems from the introduction of parole, probation, suspended sentences, or other
changes in sentencing criteria, etc.67 When I emphasize the wider forces leading to
the obsolescence of the prison institution, I do not mean to imply that Jankovics main
hypothesis is incorrect, because one of the striking features of capitalism in the long
run has been the change from an enormous industrial reserve armythat arose in
the initial period of industrial take off at different times in different countriesto
a situation of full employment (as bourgeois economists define a more contained
and steady unemployment rate). This latter situation has characterized capitalism
from the period of the Great Depression of the 1930s up to the present crisis.68
An attempt to grasp the more meaningful structural reasons for the crisis in the
prison institution is not antagonistic, then, to a theory that shows a correspondence
between the rate of imprisonment and the rate of unemployment.
Jankovic points to the emergence within advanced capitalism (particularly in the
United States) of a kind of control that does not imply the imprisonment of those
convicted, i.e., probation. This kind of sanction presents a real alternative to the
use of prison or pecuniary punishments that Kirchheimer envisioned.69 Jankovics
observation does not contradict the effort to articulate a theory of structural crisis
of the institution; on the contrary, it fits such a theory very well, because this new
kind of sanction seems to express that obsolescence of the prison system, which
has been induced by capitalist development, within the very penal system of social
control.70 From the standpoint of this discussion and of the analysis to which I have

Georg Rusche and Otto Kirchheimer: Punishment and Social Structure

279

referred, in the long run the same forces seem both to challenge the justification
for the existence of prisons and simultaneously to call forth the creation of new
penal tools that mesh more smoothly with the present stage of social relationships.
In conclusion, these seem to be the main issues upon which the discussion of
P&SS must be focused. Further, our research must center on these issues not only to
essay the validity of Rusches hypothesis, but also to shed light on the relationship
between punishment and social structure as it appears within the post-World War
II capitalist mode of production. We are dealing here with research that goes far
beyond the limits of the criminal question. As Rusche and Kirchheimer were able
to show us, punishment comes to be the kernel in a set of complex relationships
dealing with a few central concepts of contemporary capitalism: the management
of labor and its corresponding ideology, the state of the labor market, and social
control processes in the widest sense.
It is not by chance that the general themes in P&SS came again to the fore
within the context of the crisis in capitalism that began during the 1960s. This
circumstance has provided us with the rediscovery of a classic and important work
that the professional textbooks, both legal and criminological, preferred to ignore.
Now that these textbooks, the exegetes and guarantors of a bygone stability, may
definitely be shelved for good, we possess a work that we can make use of to build
the new. Within the crisis, this is precisely what we need.
NOTES
1. I could not find anything published about Georg Rusches life and works. What follows in this
section is the result of my own research. (I would like to thank the following people for their invaluable
help: Martin Jay, at the University of California, Berkeley, and Helmut Dubiel, at the University of
Mnchen, who gave me access to the Pollock-Archiv in Frankfurt.) The life and works of Otto
Kirchheimer are widely known; see John H. Herz and Erich Hula, Otto Kirchheimer: An Introduction
to His Life and Work, in Otto Kirchheimer, Politics, Law and Social Change, New York and London:
Columbia University Press (1969): ixxxix.
2. See the letter from Georg Rusche (London) to Max Horkheimer (New York), March 15, 1941
(Pollock-Archiv, Frankfurt). Much of the information used in the first section is taken from this letter.
3. This thesis, Bemerkungen zum Rechtsbegriff und zu den Grundstzen der philosophischen
Rechtslehre, is a discussion of Jacob Friedrich Friess legal philosophy (typed).
4. The title of this thesis, supervised by Erwin V. Beckerath, is Bemerkungen zur logischen
Grundlage der theoretischen konomik, Eine Untersuchung der Wirtschaftswissenschaft. Leipzig:
Thalacker and Schoeffer (1929).
5. He wrote about these matters for a daily Frankfurt newspaper, the Frankfurter Zeitung, which
was taken over by Hitler in the late 1930s. See an article by him entitled Zuchthausrevolten oder
Sozialpolitik (June 1, 1930).
6. See the preface by M. Horkheimer in G. Rusche and O. Kirchheimer, Punishment and Social
Structure. New York: Russell and Russell (1967): ixx.
7. Georg Rusche, Arbeitsmarkt und Strafvollzug. In the Zeitschrift fr Sozialforschung II
(1933): 6378.
8. On the history of the Frankfurt School, see first and foremost Martin Jay, The Dialectical
Imagination: A History of the Frankfurt School and the Institute of Social Research. Boston/Toronto:
Little, Brown and Company (1973).

280

Dario Melossi

9. See Rusches letter to Horkheimer, cited in note 2.

10. See, for instance, Horkheimers letter of June 28, 1939, in the Pollock-Archiv in Frankfurt.
11. See also his letters of April 5, June 14, and August 6, 1939, to Horkheimer and the Institutes
reply, probably drafted by Pollock on April 10, 1941. These, too, are located in the Pollock-Archiv. I
could not find any books or articles published by Rusche after P&SS. Herbert Marcuse, Leo Lowenthal,
Thorsten Sellin (who wrote the foreword to P&SS), M.I. Finley (who helped Otto Kirchheimer with
the translation of the book into English), and Anne Kirchheimer, Ottos widow, have all kindly written
or said to me that they never met Rusche and that they never got to know anything about him after
Punishment and Social Structure was published.
12. During his first years of exile in Paris, Kirchheimer wrote Remarques sur la statistique
criminelle de la France daprs-guerre, in the Revue de Science Criminelle et de Droit pnal
compare 1 (1936): 36396. On criminological matters, while in New York, he also wrote Recent
Trends in German Treatment of Juvenile Delinquency, Journal of Criminal Law and Criminology
XXIX (1938), pp. 36270, and two articles for the Institutes journal, discussed in section three of this
article.
13. Regarding Finkelstein, who changed his name to Finley, see M. Jay: 28485.
14. Herbert Marcuse, Thorsten Sellin, M.I. Finley, and Anne Kirchheimer agree in excluding the
possibility that Rusche and Kirchheimer had ever worked together on Rusches first manuscript and in
maintaining that Kirchheimer reworked it alone when he got to New York. M.I. Finley states in a letter
to me that the relations between Rusche and the New York Institute were badly strained, to the extent
that people at the Institute considered the possibility of dropping Rusches name from the book. In his
letter to Horkheimer of June 14, 1939, Rusche wrote: I am really sorry to be obliged to say that in
Dr. Kirchheimers work there is a series of flaws that should have not appeared in the book and that I
strongly deplore (my translation from German).
15. The old Columbia University Press edition (New York: Morningside Heights, 1939) was
reprinted by Russell and Russell in 1967. The German translation appeared in 1974 (Sozialstruktur
und Strafvollzug, Neuausgabe Cologne-EVA).
16. See A. Schmidt, Die Zeitschrift fr Sozialforschung: Geschichte und gegenwrtige
Bedeutung. Mnchen (1970); M. Jay; F. Apergi, Marxismo e ricerca sociale nella Scuola di
Francoforte (19321950), Firenze: La Nuova Italia (1977).
17. My translation from the German. See A. Schmidt, who gives an accurate discussion of the
concept of social research from the Frankfurt School.
18. See A. Schmidt.
19. Above all, see the studies done by Friedrich Pollock. Apergi emphasizes the influence of
Pollocks thesis on state capitalism upon the theory of the main figures of the School, such as
Horkheimer, Adorno, and Marcuse; see also M. Jay: 143ff.
20. See M. Horkheimer and others, Studien ber Autoritt und Familie, Paris (1936); T.W. Adorno
and others, The Authoritarian Personality, New York (1950). See also Adornos and Horkheimers
many essays on mass culture.
21. Again, see A. Schmidt.
22. Georg Rusche, Arbeitsmarkt und Strafvollzug (cited in note 7): 64. My translation from the
German.
23. The less eligibility principle was mainly formulated by the English social writers of the
eighteenth century. This principle is, essentially, that simple heuristic maxim that Rusche designed
to underpin his research in the main. See his Arbeitsmarkt und Strafvollzug: 67. See also D. Melossi
and M. Pavarini, Carcere e fabbrica, Bologna: Il Mulino (1977), pp. 8182, which was also translated
into English.
24. These themes have been more broadly developed in D. Melossi, Carcere e lavoro in
Europa e in Italia nel periodo della formazione del modo di produzione capitalista, in D. Melossi
and M. Pavarini, Carcere e fabbrica: 7175, and in D. Melossi, Istituzioni di controllo sociale e

Georg Rusche and Otto Kirchheimer: Punishment and Social Structure

281

organizzazione capitalistica del lavoro: alcune ipotesi di ricerca, in La questione criminale II(23)
(1976): 293302.
25. M. Foucault, Surveiller et Punir, Paris: Gallimard (1975). The English translation is entitled
Discipline and Punishment, New York: Pantheon Books (1977).
26. In this sense, the story in Surveiller et Punir has already been told in the first volume of
Capital, Part IV: Production of Relative Surplus Value, New York: International Publishers (1977):
312507. An interesting study of how Foucaults conomie politique du corps has been developing
within the political economy tout court (that is, within the factory, within the sphere of production) is
Harry Bravermans Labor and Monopoly Capital, New York: Monthly Review Press (1974).
27. See Massimo Cacciari, Razionalit ed irrazionalit nella critica del politico in Deleuze e
Foucault, Aut-Aut 16 (1977): 119ff.
28. See J. Bentham, Panopticon, in The Works of Jeremy Bentham, IV, New York (1962): 37ff.
(Marx, it should be added, described Bentham as a genius in the way of bourgeois stupidity, in
Capital, Vol. 1: 610.) On the utopian character of Benthams project, even within the history of
prison architecture, see Robin Evans, Benthams Panopticon: An Accident in the Social History of
Architecture, Architectural Association Quarterly, III (1971): 2137. Finally, see D. Melossi and M.
Pavarini in Carcere e fabbrica: 6776, 239ff.
29. In H.W. Babb, J.N. Hazard, eds., Soviet Legal Philosophy, Cambridge, MA (1951): 111225.
30. E.B. Pashukanis, in Babb and Hazard: 21819.
31. See D. Melossi, The Penal Question in Capital. Crime and Social Justice 5 (SpringSummer, 1976), pp. 2633, and D. Melossi and M. Pavarini, Carcere e fabbrica: 8588.
32. Hans Kelsen, The Communist Theory of Law, New York: Praeger (1955): 98103.
33. In this, he is followed by two latter-day Italian disciples: see L. Ferrajoli and D. Zolo,
Marxismo e questione criminale, La questione criminale III(1) (1977): 97ff.
34. See H. Steinerts paper entitled On the Development of Penal Policy, Mainly a Critique of
Rusche/Kirchheimer and Some of Their Background Assumptions (presented at the fourth meeting of
the European Group for the Study of Deviance and Social Control in Wien, September 1976). See also
the doubts expressed by Guido Neppi Modona in his foreword to D. Melossi and M. Pavarini, Carcere
e fabbrica: 715.
35. It is clearly presented in his article Arbeitsmarkt und Strafvollzug.
36. As I already noted, Rusche was unhappy with the way Kirchheimer reworked and completed
the book. Perhaps this too was caused by the failure to extend the fundamental relationship between
the labor market and punishment to the contemporary epoch. In his letters, Rusche often indicates
an intention to continue working on the matter, even after publication of the book. See especially his
letters to Horkheimer of April 5 and June 14, 1939, in which he writes of his desire to go on studying
the development of German penal policy under Nazi control. He refers to the extreme scarcity of labor
power (ungeheuerlichen Arbeiterverknappung) in prewar Germany as a really interesting new fact
in connection with penal practices. See note 59 below for further information.
37. Generally speaking, regarding the difficulty encountered by Marxist analysis of the whole
period after the Great Depression of 1929, and on the specific topic of prison history.
38. Otto Kirchheimer, born November 11, 1905, at Heilbronn, studied law and the social sciences
at the following universities: Mnster, Cologne, Berlin, and Bonn. His principal teachers were Max
Scheler, Rudolf Smend, Herman Heller, and Carl Schmitt. Between the 1920s and 1930s, he was an
active militant in the left wing of the German Social Democratic Party (SPD). (See J.H. Herz and E.
Hula; and M. Jay: 14849.)
39. See M. Jays chapter on the Institutes analysis of the Nazi period. Whereas Neumanns
major work, Behemoth (New York, 1944), centers its analysis of German fascism on the concept of
monopoly capital, Pollocks workscritical to Horkheimers and Adornos theoryare focused upon
state capitalism. See M. Jay: 16167.

282

Dario Melossi

40. In this period, Kirchheimer wrote articles for the journal of the School, such as Criminal
Law in National Socialist Germany, in Studies in Philosophy and Social Science VIII (1940), pp.
44463, and The Legal Order of National Socialism, Studies in Philosophy and Social Science IX
(1941): 45675.
41. See O. Kirchheimer, Weimar: And What Then? An Analysis of a Constitution. In O.
Kirchheimer, Politics, Law and Social Change: 3374.
42. Rosa Luxemburgs political and theoretical activity is particularly meaningful on this
point. See D. Melossi, La concezione delta democrazia nel pensiero di Rosa Luxemburg. In Rosa
Luxemburg e lo sviluppo del pensiero marxista, Milano: Mazzotta (1977): 333ff.
43. In this analysis, Kirchheimer is very close to Neumann. See, above all, F. Neumann, The
Change in the Function of Law in Modern Society, The Democratic and the Authoritarian State, New
York (1957). It is probably not by chance that by then both of them were working with A.R.L. Gurland
on research published under the title The Fate of Small Business in Nazi Germany, Washington, DC
(1943), for a US Senate commission.
44. See O. Kirchheimer, Criminal Law in National Socialist Germany: 445. A broad picture
of the debate among the different schools of criminal law in Germany between the period of the
Weimar Republic and the rise of National Socialism is given by Alessandro Baratta in Antinomie
giuridiche e conflitti di coscienza, Milano: Giuffre (1963), and Positivismo giuridico e scienza del
diritto penale, Milano: Giuffre (1966). On the Kiel school, see in particular Antinomie giuridiche...:
38ff and Positivismo giuridico...: 23ff. The critique of phenomenological legal schools is tightly linked
in the writings of the Frankfurt School with the critique of phenomenological theory tout court. See,
for instance, H. Marcuse, The Struggle against Liberalism in the Totalitarian View of the State and
The Concept of Essence in Negations, Boston: Beacon Press (1969): 387.
45. See A. Baratta, Antinomie giuridiche...: 60ff and Positivismo giuridico...: 50ff.
46. See O. Kirchheimer, Criminal Law in National Socialist Germany: 446, 448ff.
47. Ibid., 461.
48. Ibid., 451.
49. Ibid., 452ff.
50. O. Kirchheimer, The Legal Order of National Socialism. In O. Kirchheimer, Politics, Law
and Social Change: 99.
51. Ibid., 99, 100.
52. Max Horkheimer, Preface, Studies in Philosophy and Social Science IX(2) (1941): 198ff.
On the broad and problematic themes underneath these questions, see M. Cacciari, Krisis, Milano:
Feltrinelli (1977).
53. G. Rusche, Arbeitsmarkt und Strafvollzug: 76 (my translation from German).
54. See I. Jankovic, Labor Market and Imprisonment, Crime and Social Justice 8 (Fall-Winter,
1977): 1731.
55. See G. Rusche and O. Kirchheimer: 13865. The countries where Rusche and Kirchheimer
find a decline in the use of imprisonment are Great Britain, Germany, and France.
56. Complete is the correspondence within this historical period, the one covered by Rusches
program in Arbeitsmarkt und Strafvollzug and in chapters II to VIII of Punishment and Social
Structure, which Horkheimer attributes to Rusche in his preface to the book.
57. As a matter of fact, the struggle to abolish prison labor came to constitute a constant aim of
the working-class movement from its origins. This was particularly true of the United States in the
nineteenth century, where the exploitation of prison labor developed more than in any other country.
See M. Pavarini, Linvenzione penitenziaria: lesperienza degli Stati Uniti dAmerica nella prima
met del xix secolo. In D. Melossi and M. Pavarini, Carcere e fabbrica: 18999.
58. See I. Jankovic: 1819. Recent historical cases, such as Nazi Germany, have widely shown
that there is no necessary conflict between capitalism and the use of coerced labor. It is a political
problem, having to do with the power relationships between the classes. Robert Evanss article

Georg Rusche and Otto Kirchheimer: Punishment and Social Structure

283

Some Notes on Coerced Labor, in the Journal of Economic History 30 (1970), pp. 86166, is cited
by Jankovic and is an apologetic for free-enterprise capitalism following the teachings of Milton
Friedman (as Evans openly states). Nothing is demonstrated in the work other than that, to escape the
sad necessity of coerced labor, we must have a competitive labor market. That is, in other words,
coercion must work automatically, as an offspring of the state of the labor market. As Marx writes,
after the open violence of primitive accumulation, the dull compulsion of economic relations sets
in to complete the subjection of the labourer to the capitalist (Capital, Vol. I: 737). This is a lesson
that, by the way, Milton Friedmans Chicago Boys are trying to apply to post-coup Chile even too
literally!
59. In particular, it applies to the early seventeenth century in Holland and the Hansa towns, during
the origins of the capitalist mode of production, and to the early period of American industrialization
in the nineteenth century (see G. Rusche and O. Kirchheimer: 2452, 12737). Rusches observations
in his letter cited above (see note 36) suggest that he believed this was also true of Nazi Germany.
60. See I. Jankovic: 26.
61. See G. Rusche and O. Kirchheimer: 84113.
62. See I. Jankovic: 19.
63. This takes place in keeping with the principle of less eligibility.
64. See G. Rusche, Arbeitsmarkt und Strafvollzug, p. 74, and G. Rusche and O. Kirchheimer:
84113.
65. That is why a broad and indeterminate use of the concept of Panoptisme is of doubtful utility,
as I wrote above. From this standpoint, Jean-Pierre Barous and Michelle Perrots interview with
Michel Foucault is ambiguous. See Loeil du pouvoir, in J. Bentham, Le panoptique, Paris: Pierre
Belfond (1977): 731. On this and on what follows, see D. Melossi, Istituzioni di controllo sociale e
organizzazione...: 30217.
66. Not only in the countries they analyzed, but also in Italy and Sweden, to mention some
others. See D. Melossi, Statistiche della criminalit carcerarie in Italia, Inchiesta VI(21) (1976).
See also Annika Snare, Work, War, Prison and Welfare: Control of the Laboring Poor in Sweden
(dissertation in criminology, University of California, Berkeley, 1977). We do not have US figures
before 1926 and therefore none that are homogeneous with the period we are addressing. After 1926,
we realize a sharp rise in state and federal imprisonment during the crisis years, a sharp decline during
the war, and then a steady, almost unchanging trend until the early seventies, rising slightly above
the 1926 level. But in the other countries I mentioned, the imprisonment trend also varied relevantly
after the 1930s and 1940s. A full understanding of this last period requires fuller research, in order to
address problems that I am simply hinting at here.
67. Beyond the legal variations, though, we are dealing with the gross social fact of the long-run
use of imprisonment, as shown in the daily average prison population (as Rusche, Kirchheimer, and
Jankovic do in their research).
68. In fact, a historical phenomenon between the nineteenth and twentieth centuries, which
merits deeper inquiry, is the contemporary decline in the prison population and the rise in migration,
at least in Italy and Sweden (even if in different decades; see the works cited in note 66). We do not
have overall historical trends of the prison population in the United States before 1926, that is, in
the decades in which the European surplus population poured in by the millions. It would be very
interesting to check whether the trend in those decades for the American prison population was the
opposite, i.e., rising (the rise between 1926 and late 1930s happened after the big migration and was
linked with the Great Depression, as already noted).
69. See G. Rusche and O. Kirchheimer, pp. 16676, and I. Jankovic, pp 1819. A report to the
US Congress, edited by the LEAA, demonstrates that in 1965, out of a total of 1.3 million offenders,
the daily average number on probation was 684,088, or 53 percent of the total. A projection into 1975
showed over one million offenders (58 percent) on probation. In the same report it is stated that,
even lacking complete general data for 1974, the partial ones show that the percentage of offenders

284

Dario Melossi

on probation between 1969 and 1974 increased much more than did the prison population. In the
four locations the study focuses upon, the counties of Maricopa, Multnomah, Philadelphia, and King,
between 71 and 83 percent of the offenders received sentences of probation in 1974. (See report to
the Congress, by the Comptroller General of the United States, State and County Probation in Crisis,
LEAA, Department of Justice, May 27, 1976.)
70. On the specific nature of the relationship between the development of modern capitalism and
the emergence of nonprison penal provisions (such as probation, parole, etc.), I am obliged to cite,
once again, D. Melossi, Istituzioni di controllo sociale e organizzazione: 3027.