Here's a test for everyone's reading skills! The Law and Order craze would bear out Pashukanis' point that the center of gravity is the courtroom not the effects of punishment.
For criticism of Pashukanis see David Garland among others.
Rakesh
http://www.marxists.org/archive/pashukanis/1924/law/ch07.htm Deprivation of freedom - for a definite term previously indicated in the judgement of a court - is the specific form in which modem, that is, bourgeois capitalist criminal law, realizes the basis of equivalent retribution. This method is deeply, but unconsciously connected with the concept of the abstract man and of abstract human labour time. It is not accidental that this form of punishment grew strong and eventually seemed natural and expected, in the nineteenth century, i.e. when bourgeois society was fully developed and had consolidated all its particular features. Prisons and dungeons, of course, existed even in ancient times and in the Middle Ages, alongside other means of physical coercion. But at that time prisoners were usually confined until their death or until the payment of a ransom.
A necessary condition for the appearance of the notion that payment for a crime should be by a previously determined amount of abstract freedom, was that all concrete forms of social wealth had to be reduced to the simplest and most abstract form - to human labour time. Here we undoubtedly observe yet another case affirming the mutual protection of the various aspects of culture. Industrial capitalism, the Declaration of the Rights of Man and the Citizen, Ricardo's political economy, and the system of terms of incarceration in prison-these are phenomena of the same historical period.
Equivalence of punishment - in its crude and overtly material form as the causing of physical harm or the exacting of monetary compensation - specifically because of this crudeness preserves a simple meaning accessible to everyone. But it loses this meaning in its abstract form of the deprivation of freedom for a definite term, although we continue to speak of a measure of punishment proportional to the gravity of the act.
Therefore, it is natural for many criminal law theorists (primarily those who consider themselves the most advanced) to attempt to remove this element of equivalence because it has clearly become inconvenient, and to concentrate attention on the rational goals of punishment. The mistake of these progressive criminologists is that in criticizing so-called absolute theories of punishment, they suppose that they are confronted only by false views and confused thoughts which can be dissolved simply by theoretical criticism. In fact, the inconvenient form of equivalence does not derive from the confusion of individual criminologists, but from the material relationships of commodity production, and it is nurtured by them. The contradiction between the rational goal of the protection of society - or the re-education of the criminal - and the principle of the equivalence of punishment, exists not in books and theories but in life itself in judicial practice, in the social structure itself. Similarly, the contradiction between the fact of the bond of social labour as such, and the inconvenient form of expression of this fact in the value of commodities, exists not in theory, and not in books, but in social practice itself.
Sufficient proof of this is found in various elements. If, in social life, punishment was considered as an objective, then the keenest interest would be aroused in the implementation of punishment and, above all, by its result. However, who would deny that the centre of gravity of criminal procedure for the overwhelming majority-is the court room and the moment of pronouncing the verdict and sentence?
The interest which is shown towards enduring methods of influencing the criminal is utterly negligible in comparison with the interest which is aroused in the effective moment of pronouncing the verdict and sentence, and in the determination of the "measure of punishment". Questions of prison reform are a live issue only for a small group of specialists; broadly, the correspondence of the sentence to the gravity of the act occupies the centre of attention. If, according to common sentiment, the equivalence is properly determined by the court, then the matter will be concluded here, and the subsequent fate of the criminal is of no interest. "A study of the execution of punishment," complains Krohne, one of the leading specialists in this area, "is the sore point of the science of criminal law." In other words it is relatively neglected. "And moreover", he continues, "if you have better laws, better judges, and better sentences, and the civil servants carrying out these sentences, are worthless, then you may freely throw laws into the rubbish bin and burn your sentences." [60] But the authority of the principle of retributive equivalence is not only discovered in the distribution of social interest. It appears no less clearly in judicial practice itself. In fact, what other bases are there for those sentences which Aschaffenburg cites in his book Crimes and the Struggle against Them? Here are just two examples of a long series: a recidivist, convicted 22 times for forgery, theft, extortion etc., was sentenced for the 23rd time to 24 days in prison for slandering an official. Another, who had in all spent 13 years in prison and the penitentiary (Zuchthaus), having been convicted 16 times for extortion, theft etc., was sentenced (the 17th time) for extortion to 4 months in prison. [61] In these instances one obviously does not discuss the protective or corrective function of punishment. Here the formal principle of equivalence triumphs: for equal guilt - an equal measure of punishment. And in fact what else could the judge do? He could not hope to correct a confirmed recidivist by 3 weeks' detention, but he also could not isolate the prisoner for life because of the mere slander of a civil servant. Nothing is left to him but to have the criminal pay in small change (a certain number of weeks of deprivation of freedom) for a minor crime. For the rest, bourgeois jurisprudence ensures that the transaction with the criminal is in accordance with all rules of the art, i.e. that each may be convinced, and may verify that the payment is justly set (public judicial proceedings), that the criminal may bargain freely (adversary process), and that in so doing he may use the services of an experienced judicial expert (admission of the defence) etc. Briefly, the state conducts its relationship to the criminal within the framework of a bona fide commercial transaction in which there are, ostensibly, guarantees of criminal procedure.