In an abolitionist point of view, crime is the product of criminal justice systems rather than the converse. Criminal justice system, the child of «Holy Inquisition» (Swaaningen, 1986) has a catascopic, repressive, punitive, exceptional and inflexible character, and offers no solution to the fundamental problems of racism and sexism (Ward, 1986). The system leads to a penal reconstruction of reality (Swaaningen, 1995). Moreover, criminal justice system is more problematic than crime itself in a moral sense (Hulsman, 1981), being «dysfunctional to its own ends» (Swaaningen, 1995: 120 and Christie, 1998: 123); it is the state and its criminal justice system that intentionally and systematically afflicts pain upon other people (Swaaningen, 1995) and has stigmatising effects. Therefore, abolitionists savagely criticised this system for its rationale and its actual functioning and penal abolitionism invariably supports the abolition of this system in order to revitalise the social tissue (Swaaningen, 1986). The criminological paradigm in question is in fact obligated to expose the futility and cruelty of every prison system along with the hypocrisy that is at the base of every criminal justice system.
And all that in a time when what is observed is a technocratic expansion of the punitive criminal justice system in order to protect the privileges of one class (Baratta, 1989 and Smaus, 1996).
In the first place, criminal justice system is based upon a «pyramidal justice» style of dispute settlement that multiplies its classifications with geometrical progression. The «pyramidal justice» in discussion stands far away from any description, comparison and evaluation by the populous, i.e. the people who really receive its orders and controlled by (Christie, 1998). By contrast with the «equalitarian justice» of abolitionism, the «pyramidal justice» is simply imposed and controlled from «far and above»; it was created without the participation of the social tissue. Thus, there is no place left for the creation of horizontal justice due to the reduction of opportunities for a real social contact.
On the other hand, abolitionism, both as a movement and a criminological paradigm, has realised that the decision between freedom and hierarchy depends upon the ability to create strong network of horizontal and equal relations against the pyramidal one of authority and repression.
«The wiping out of the state punitive apparatus would open new horizons through a stronger and healthier coexistence towards a new justice» (Hulsman, 1997: 207).
A new thoughtful thesis was set-up by abolitionism; a thesis that provides recent elements for a better comprehension of criminal justice system and the means of coercion imposed by the system, but also elements for the comprehension of the function of criminal justice system's «satellites», i.e. the courts, the police and the mass media.
And last but not least, the recent article by the abolitionist Thomas Mathiesen in the Theoretical Criminology journal, under the title «The Viewer Society» (1997) offers a harsh abolitionist critique to the mass media and the institutional elite for constructing «reality». As Nils Christie recently concluded: «our present penal policy is an indicator of a general expansion of the state control systems» (1998: 123).
Foucault himself, has offered an enviable description of the function of criminal justice system. Criminal justice system is an anti-subversive system that introduces a definite number of contradictions into masses. It creates an aenaus mutual competition between proletarians and non-proletarians (Foucault, 1987). And «proletarization» is the condition that should be always one of the main targets for the system; people must accept and agree on their current conditions and situation as proletarians.
In the second place, criminal justice system could be characterised as - not only selective (Ruggiero, 1999) - but in essence marginalized; it deals only with a small part of criminal acts while the vast majority of criminalized acts go for one or another reason unreported and unrecorded. These acts simply stand «behind the veil» and constitute the so-called «dark figure» of criminality while criminal law turn out to be a rather unimportant and unnecessary instrument of conflict resolution.
«In my opinion, the amount of unrecorded crime is systematically underestimated. Anyway, there is no doubt that actual criminalization of criminalizable events - even in the field of traditional crime - is a very rare event indeed. In a country like Holland, far less than one percent of those criminalisable events actually criminalized in the courts. Non criminalization is the rule, criminalization a rare exception» (Hulsman, 1986: 32-33).
Clear examples of this «dark figure» are the racially motivated attacks. In the case of Britain, government figures suggest that these attacks are nowadays far more frequent than in the past but only a very small proportion are recorded and even fewer reach the British courts. In this respect criminal justice system do not take full account of the racist nature of these events. However, it should be noticed that it is not only a problem of criminal justice system, a problem of policy; it is a problem of state itself («Race, Violence and Law», 1993 - videotape).
In the third place, criminal justice system produces and maintains social inequalities as the penal system ex officio serves the ruling class while criminal law is an instrument of class domination («class character of criminal law») that should not be underestimated by critical criminology; the fact that criminal law remains «in the background as a last resort» does not mean that criminal law is a «second-order law» as Heinz Steinert believes (Steinert, 1977). Criminal justice system simply would have no reason to exist without its rules. Therefore, criminal law is not only a means of repression but also the heart of the matter. Criminal law and prisons are first and foremost about social control, «about creating a more politically obedient and economically useful population» (Olson 1994) though a process of creating an imaginary «criminal class». (Barfoot, 1993).
Thinking in a higher level of abstraction, the punitive system of criminal justice «appears to be rather a functional subsystem for the material and ideological reproduction (legitimacy) of social system as a whole», i.e. the existing relations of authority and ownership (Baratta, 1989: 10). Therefore, the usual «clients» for criminal justice systems are the poor, the working class people, the «politically incorrect» (Bourque 1994) and essentially the «generalised-other» of any country (Karydis 1996); the immigrants. Thus, the function of criminal justice system is extremely selective not only regarding the offered security of goods and interests but also regarding «the process of criminalization and the related recruitment of the penal population» (Baratta, 1989: 11).
«Those who are officially recorded as ³criminal² constitute only a small part of those involved in events that legally are considered to require to be criminalized. Among them young men from the most disadvantaged sections of the population are heavily over-represented» (Hulsman, 1986: 27).
Furthermore, the impact of crime itself in uneven for the most victimised people belong to the poorer and more vulnerable sections of the population. And it is exactly this section of the population that pays too high the price of the financing of criminal justice system (Matthews, R. and Young, J., 1992).
In the forth place, criminal justice system is deservedly considered as a «thief» by penal abolitionists; conflicts are been stolen from its owner (Christie, 1977). In essence, the states and its agencies take in hand personal subjects; thereby every peaceful and non-punitive settlement becomes inevitably impossible.
«The violation of the law, this concrete action, is of such importance that it sets the whole machinery of the state in motion and decides in almost every detail everything that will subsequently take place. The crime - the sin - becomes the decisive factor, not the wishes of the victim, not the individual characteristics of the culprit, not the particular circumstances of the local society. By excluding all these factors, the hidden message of neo-classicism becomes a denial of the legitimacy of a whole series of alternatives which should be taken into consideration» (Christie, 1981: 44-45).
The criminal justice system invariably continues to exclude from its process all those involved in problematic situations («offender», «victim» and close social environment). As the Norwegian abolitionist Nils Christie (1977: 1-5) argued so forcibly:
«Conflicts have been taken away from the parties directly involved and thereby have either disappeared or become other people's property ... criminal conflicts have either become other's people property - primarily the property of lawyers - or it has been in other people's interests to define conflicts away».
However, the fact that the vast majority of «crimes» goes unreported and unrecorded («dark figure») does not mean that these problematic situations remain unsettled. Most interpersonal conflicts follow peaceful settlement with no implementation of the punitive criminal justice system. Therefore, despite the high rates of imprisonment, a conflict rarely and occasionally is referred to the criminal justice system (Hulsman, 1997).
In the fifth place, there are many indicators showing that crime control means to a great extent social control. Victimless crimes (e.g. homosexuality or drug use) and moral offences make clear that crime control via criminal law and criminal justice system is inevitably a means for social control. But criminal law «is an inefficient instrument for imposing the good life to others» (Bayer, 1993: 13).
Formulated in bold terms, we should say that criminal law does not lead to justice but «tells something essential about the society, its structures and power relationships» (Gronfors and Stalstrom, 1986), through society's sexual norms, and moral issues and attitudes.
On the other hand, crime control via criminal justice system is social control as it comes in economic issues, i.e. productivity. For example, one of the strongest tools for capitalism in order to support its own interests and needs is the control of sexuality. However, according the basic capitalist principles, homosexuality should be considered as a «non-productive» behaviour. The lack of sexual production and new industrial labour (i.e. children) is the real reason for the criminalization of the behaviour in discussion. A criminalization well structured and covered with pseudo-moral issues was constructed and a new type of «criminals» were created; the homosexuals, a highly discriminated and stigmatised minority of «sexual deviants» (Gronfors and Stalstrom 1986). And unfortunately, criminologists became - more or less - the guardians of sexual normality.
Another indicator that crime control by criminal justice system and criminal law is in fact social control was offered by the neo-feminists in the field of criminology. Pat Carlen (1984) showed how criminal justice system created a passive stereotype of woman and establishes an unreasonable interest of criminal law in woman's sexuality and sexual behaviour. In this respect, criminal justice system managed to make an invasion to women's life, an invasion of her body and her mind. According to Pat Carlen
«The history of law on rape also shows a traditionally rape is been treated as a property offence. That is to say that rape is been seen as an offence by a man against another man's property. Punishment did not reflect the harm done to a woman, it simply reflected her value to men» (Carlen, 1984).
More to the point, we should conclude that the abolitionist critique towards penal law and criminal justice system is justified. The punitive character of criminal justice system produces more problems than the problems is supposed to solve, while criminologists seems to be like doctors who secretly love the decease they are supposed to be fighting. And it is criminal justice system that creates conflicts instead of arranging them and «many times the same conflicts reappear in a more serious form or appear new ones because exactly of the penal intervention» (Baratta, 1989: 11).
For all the above reasons, abolitionists advocate the abolition of criminal justice system and show great interest to the civil procedure as a mechanism for conflict resolution for the so-called «minor» and «medium» criminality. For example, non-violent and tolerant approaches to the problem of «crime» are commonly used among the Quakers community; the cornerstone of Quakers» policy towards this problem is the notion of «invasiveness». Such approaches are the payment of some kind of fines from the offender to the victim, education, processing and practice of methods for self-defence, non-forced therapy, help by friends and relatives. The hardest approaches are simply the non-collaboration between the community and the offender or in some case ostracization.
Simultaneously, penal abolitionism is in fave of a policy of minimal penal intervention for more serious criminality and offers a model of analysis towards a really alternative penal policy through a strategy of maximum limitation of the penal (institutional) violence. Because, «our fate, and our saving grace, is to be compassionate beings. in all humility and whatever may be known is known in love» (Quinney, 1994: 2).
It is true that, in contrast to the civil procedure where the judge deals with a claim if and as far as there is clear right and reasonable interest of the plaintiff, and where the parties are treated more equally, the criminal law procedure is rather authoritarian way of dealing with conflicts. The civil law would be a suitable means to achieve Bianchi's «eunomie» (Swaaningen, 1995 and 1997) than criminal law. Abolitionists are right in their conclusion that
«the judge in criminal matters does not take into account, and focuses on abstract ideas like the disturbed legal order, the so-called ³seriousness² of the committed act(s), and the intentions of the accused. He punishes on the vague standards of ³equivalence of rights², based on dubious notions like retaliation, general prevention, confirmation of the norms and so on, which correspond in no way, whatsoever to the damage caused by the action» (Knap, 1986: 215).
The criminological paradigm in question direct our attention to rational and reflexive reactions to problematic events (Haan, 1990) and suggest autonomous and informal ways of conflict resolution, like neighbourhood justice and popular courts, for criminal justice system is beyond repair. Not punishment but reconciliation is the abolitionist suggestion as a reaction to problematic events.
On the other hand, the bureaucratic framework of every criminal justice system automatically leads to the so-called professional deformity of those involved within. And the reason for this deformity is the specialisation of judges; the existence of «specialised non-specialists». The abolitionist perspective is clear:
«The ideal is clear; it ought to be a court of equals representing themselves. When they are able to find a solution between themselves, no judges are needed. When they are not, the judges out to be their equals» (Christie, 1977:
Moreover, in an abolitionist point of view, the promotion of dispute-settlement, regulation and management of the conflict is a possible and viable alternative for conflict resolution. The duty of abolitionists is to struggle towards re-skilling people to do so. On the other hand, both abolitionists and left realists share the opinion that the poor and deprived sections of the population are suspicious towards to informal and decentralised systems of conflict resolution (Lea, 1999) while privileged categories in society «have far better possibilities than the underprivileged to settle their disputes in a non-penal or punitive way» (Bianchi 1986: 155). But what left realists fail to see, is exactly the great need to prepare the structures of dispute-settlement, to convince the deprived and underprivileged parts of society for the need of a non-punitive approach to «crime» by demonstrating the class-biased character of penal law and at last to convince them to get involve in the preparing of these structures. It is time to take criminal justice system seriously not the «crime». In Bianchi's words, «the underprivileged suffer quite badly from false consciousness: they have been educated to believe that a punitive attitude is the best criminal policy» (Bianchi, 1986: 156). That is what must be changed.
It is true; «any alternative is a matter of profound social change» (Lea, 1999). Therefore, the modern penal abolitionist has to «translate his message into political terms» (Bianchi, 1986:156). Crime and crime control are social relations as defined by the state apparatus. In order to see them as lay-oriented social relations we must adopt an anascopic view of life world and deal with them not as pre-existing problems but as «by-products of criminal justice system itself» (Lea, 1999). The false consciousness is the problem. And Herbert Marcuse was right;
«The power of the master depends on the slave himself who believes to and maintain this power» (Marcuse, 1965: 23).
Finally, penal abolitionists should make every endeavour to spread the abolitionist ideas among the judiciary. And as good example towards this aim we can mention the French «Syndicat de la Magistrature», a syndicate that offers the opportunity for real and equal representation to all members of judicial body and aims at the breaking «with the sectarianism and monolithic structure of the judiciary and instead be antielitist, antihierarchical and pluralist» (Haan, W. et al, 1989: 479).
This syndicate, based on anarcho-syndicalist traditions and principles, launched on 8 June 1968 and until this moment organised conferences on human rights, legislation, prison reform, class justice while simultaneously organised a lot of judicial strikes for political matters and not only for negotiating better salaries and working conditions. And, despite the fact that judges are most of the times recruit from the upper stratum of society and despite the clear limits and related contradictions, the judges of the «Syndicat de la Magistrature» many times «worked to demystify the images of law», and represented the anger of a social class that is frustrated by seeing law enforced selectively against «the normal clientele of justice» (Haan, W. et al. 1989: 480). In this respect, the syndicate succeeded to shift attention from technical aspects of law and focus it on the real social problems.
More to the point, penal abolitionism must build bridges of collaboration with these kind of syndicates and work together for the overstepping of the current situation; judiciary should not be based on ritualistic and authoritarian principles. The enemy is well known and too strong to e confronted m an elitist way of acting.