Gramsci on Retributive Punishment

 Gramsci's Prison Notebooks defends a retributive theory of punishment:

If every State tends to create and maintain a certain type of civilisation and of citizen (and hence of collective life and 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). ... 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. ... 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. (246-7)

Gramsci's retributivism contrasts with the positivist criminology of Enrico Ferri, a sometime socialist who became a major supporter of Mussolini's fascist regime. Ferri, following a long enlightenment tradition, rejected retribution (and perhaps rehabilitation as well) as appropriate grounds for punishment, and he favored punishment merely as a form of social deterrence. This kind of positivist penal theory remains very much alive, in, for example, the work of Steve Levitt, who recently has proposed dramatically reducing incarceration and replacing it with constant GPS monitoring. Such proposals make sense if one takes deterrence and public safety to be the only good reason for punishment. They make less sense if one cares about retributive justice and rehabilitation.

As Gramsci notes, punishment is one crucial part of holistic social education. He rejects liberal neutrality and insists on the ethical character of the state:

Educative and formative role of the State. Its aim is always that of creating new and higher types of civilization; of adapting the ‘civilisation’ and the morality of the broadest popular masses to the necessities of the continuous development of the economic apparatus of production; hence of evolving even physically new types of humanity. (242)

Every state, knowingly or not, is what Hegel termed an "ethical state":

every State is ethical in as much as one of its most important functions is to raise the great mass of the population to a particular cultural and moral level, a level (or type) which corresponds to the needs of the productive forces for development, and hence to the interests of the ruling class. The school as a positive educative function, and the courts as a repressive and negative educative function, are the most important State activities in this sense. (258)

So a liberal, capitalist society might not take itself to be actively "forming" citizens in some deep moral sense, but insofar as it is preparing workers for a capitalist economy, it is doing precisely that. Rawls too recognized this (somewhat obvious) fact:

The social system shapes the wants and aspirations that its citizens come to have. It determines in part the sort of persons they want to be as well as the sort of persons they are. Thus an economic system is not only an institutional device for satisfying existing wants and needs but a way of creating and fashioning wants in the future. (Theory of Justice 259)

On Gramsci's particular view, this program of citizen formation is critical for producing (one might say "manufacturing") consent. Consent is not passively received by the State, but is instead a dynamic relationship between the rulers and ruled. Citizens give consent and the State actively forms the citizens to consent. This is what Gramsci terms "organic consent" as mediated by the totalitarian political party:

This is precisely the function of law in the State and in society; through "law" the State renders the ruling group "homogeneous", and tends to create a social conformism which is useful to the ruling group's line of development. The general activity of law (which is wider than purely State and governmental activity and also includes the activity involved in directing civil society, in those zones which the technicians of law call legally neutral--i.e. in morality and in custom generally) serves to understand the ethical problem better, in a concrete sense. In practice, this problem is the correspondence "spontaneously and freely accepted" between the acts and the admissions of each individual, between the conduct of each individual and the ends which society sets itself as necessary--a correspondence which is coercive in the sphere of positive law technically understood, and is spontaneous and free (more strictly ethical) in those zones in which "coercion" is not a State affair but is effected by public opinion, moral climate, etc." (195-6)