What we are reading… The Conception of Law | Antonio Gramsci

A conception of the Law which must be an essentially innovatory one is not to be found, integrally, in any pre-existing doctrine…. If every state tends to create and maintain a certain type of civilisation and of citizen (and hence of collective life and of individual relations), and to eliminate certain customs and attitudes and to disseminate others, then the Law will be its instrument for this purpose (together with the school system, and other institutions and activities). It must be developed so that it is suitable for such a purpose – so that it is maximally effective and productive of positive results.

The conception of law will have to be freed from every residue of transcendentalism and from every absolute; in practice, from every moralistic fanaticism. However, it seems to me that one cannot start from the point of view that the State does not ‘punish’ (if this term is reduced to its human significance), but only struggles against social ‘dangerousness’. In reality, the State must be conceived of as an ‘educator’, in as much as it tends precisely to create a new type or level of civilisation. Because one is acting essentially on economic forces, reorganising and developing the apparatus of economic production, creating new structure, the conclusion must not be drawn that superstructural factors should be left to themselves, to develop spontaneously, to a haphazard and sporadic germination.

The State, in this field, too, is an instrument of ‘rationalisation’, of acceleration and of Taylorisation. It operates according to a plan, urges, incites, solicits, and ‘punishes’; for, once the conditions are created in which a certain way of life is ‘possible’, then ‘criminal action or omission’ must have a punitive sanction, with moral implications, and not merely be judged generically as ‘dangerous’. The Law is the repressive and negative aspect of the entire positive, civilising activity undertaken by the State. The ‘prize-giving’ activities of individuals and groups, etc., must also be incorporated in the conception of the Law; praiseworthy and meritorious activity is rewarded, just as criminal actions are punished (and punished in original ways, bringing in ‘public opinion’ as a form of sanction).

Antonio Gramsci Selections from the Prison Notebooks (Lawrence and Wishart, 1971), p246-7. (1933-34; 1st version 1931-32)

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