The Conception of Law

A conception of law which must be essentially innovatory, cannot be found, integrally, in any already existing doctrine (not even in the doctrine of the so-called positivist school, and particularly in Ferri's doctrine). If every State aims to create and maintain a certain type of civilisation and citizen (and hence of life in common and individual relationships), it aims to make certain customs and attitudes disappear and to propagate others, law will be the instrument for this end (side by side with schools and other institutions and activities). It must be elaborated in order that it should conform to the end, and that it should have the maximum effect in producing positive results.

The conception of law will have to be freed from every remnant of transcendence and absoluteness; practically from all moralistic fanaticism; nevertheless it seems to me that it cannot begin from the point of view that the State does not "punish" (if this term is reduced to its human significance), but struggles only against social "dangerousness". In reality the State must be seen as an "educator", in that it aims precisely to create a new type and level of civilisation. Because of the fact that it operates essentially on the economic forces, that it reorganises and develops the apparatus of economic production, that it alters the structure, one must not draw the conclusion that the events of the superstructure must be abandoned to themselves, to their spontaneous development, to a haphazard and sporadic germination. In this field as well the State is an instrument of "rationalisation", of acceleration and of Taylorisation, it works according to a plan, it presses, it arouses, it urges, and it "punishes", since, when the conditions are created in which a certain way of life is "impossible", "criminal action or omission" must have a punitive sanction, with a moral import, and not only a judgment of general dangerousness. Law is the repressive and negative aspect of the whole positive activity of civilising developed by the State. "Prize-giving" activities of individuals and groups should also be incorporated into the conception of law, etc.; praiseworthy and meritorious activity is rewarded just as criminal activity is punished (and it is punished in original ways, making "public opinion" play a part as a sanctioner).

Erratum

TASCA. The biographical note on Angelo Tasca, page 192, is incorrect in stating that Tasca became director of the Communist Party newspaper L'Unita in 1945. Tasca was in fact expelled from the Communist Party of Italy in 1929.