By Ryan McMaken, The Mises Institute | August 24, 2023
The only real crimes are those that constitute violence against actual, specific persons and property. These are crimes such as theft, assault, rape, homicide, and fraud. States and civil governments of all types have long justified their existence on the grounds that they punish perpetrators of these crimes and thus provide "public safety." (The fact that states themselves often commit these crimes—i.e., through torture, police brutality, taxation, and conscription—is carefully ignored.)
Throughout history, however, states have also created a distinct category of "crimes" known as political crimes. These are described as not just mere attacks on specific persons and property. Rather, these acts are attacks on "society" or "the social order" or "the nation." These offenses are given names such as "treason" or "seditious libel." In communist societies, they are often labeled "antirevolutionary activities." State propaganda always attempts to portray political crimes as assaults against all of society, but in reality, the state prosecutes political crimes because they are activities that regimes consider to be threats to the regime's interests and legitimacy. As such, these activities are often punished more severely than violent crime committed against private individuals. Political crimes need not even be physical actions taken against a regime or its agents. Political crimes are often also acts that are believed to undermine the state through the spread of anti-regime opinions. For this reason, some researchers and state authorities have suggested the term "ideological crime" to denote many political crimes.1
In a free society, political crimes are few and far between, and regimes focus on preventing violations of persons and property by either the regime itself or by private "street criminals." Under despotic regimes, on the other hand, the focus shifts to preventing crimes against the state. Under these regimes, the list of political crimes grows, and private citizens increasingly are in danger of prosecution for activities that in free societies would be considered ordinary crime or non-criminal acts altogether.
The Origins of the Concept of Political Crime
Broadly speaking, the idea of political crime is very old, and the roots of political crime can be found in the concept of lèse-majesté which regimes generally viewed as any defamation or offense against the monarch (or other head of state.) What constituted an offense, of course, tended to be very malleable, and was changed to suit the needs of the regime. A chief characteristic of political crimes—from the state's perspective—is that it is regarded as more serious and more deserving of punishment than regular crime. It is not clear why this should be so, however. Practically speaking, a physical attack on a prince or one of his agents could be treated simply as an assault and prosecuted as such. But political crimes treat these acts are even worse than ordinary assaults because they violate the safety of the ruling class which views itself as synonymous with public order and civilization. Thus, one characteristic of political crime has been—at least prior to the nineteenth century—that it was usually punishable by death. Moreover, political crimes are often subject to fewer regulations protecting the rights of the accused, and are often prosecuted by authorities more directly under the control of the central executive power.
In monarchies, political crimes such as treason and sedition and insurrection were historically regarded as offenses against a specific ruling group or person, whether an ancient Roman Emperor or a feudal king of the ninth century. By the sixteenth century, however, monarchs were increasingly only part of the state apparatus, which took on a life of its own beyond the control of the monarch. Thus, political crimes increasingly came to be regarded as crimes against "the state" rather than simply against the king or the crown.
These "crimes" were often physical acts, of course, but with the rise of absolutism in the sixteenth and seventeenth centuries, mere criticism of the prince might also bring charges of treason. Merely saying things —or holding "incorrect" opinions—could constitute a political crime. Consider, for example, St. Thomas More's treason conviction for the "crime" of refusing to affirm King Henry's divorce. Many prosecutions for political crime took place under the guise of religious violations, as well. The Spanish Inquisition, for example, was only ostensibly a religious institution and served primarily to root out ideological opponents of the crown. As Martin Van Creveld has noted, “it has been said that no institution was so completely under royal control as the Spanish Inquisition.”2 As state power increased, so did efforts to criminalize ideological threats to the regime. By the seventeenth century, combatting ideological crimes was a common activity of regimes. Entire state bureaucracies arose designed to control the flow of printed documents that might excite resistance to the regime. Violation of a state's censorship laws often brought "severe" penalties, including death. Under English common law, "seditious libel" prosecutions served to silence critics of the regime.
It was during this period that states increasingly used the still-in-use tactic of moving trials of accused political criminals to special courts that were under the direct control of the central government—and where standards of due process were more flexible. Szabo notes that in seventeenth-century France, "central power took precedence over that of the great barons" and therefore "[a]lleged political crimes were removed from the regular courts" and given over the special tribunals. "[First Minister to King Louis XIII] Richelieu defended these special courts by saying that in the regular courts justice required knowledge and evidence of proof, but that this was not the case in the affairs of state since conjecture must often take the place of proof."3 Similar trends took hold in England as early as the sixteenth century when the regime employed the notorious "Star Chamber" trials to more enthusiastically prosecute political crimes by suspected enemies of the regime.
The justification for prosecutions of political crime was soon expanded even beyond the notion of crimes against the state apparatus. In the 1640s, the English republicans executed Charles I for treason against "the free people of this nation" establishing the idea that it was possible to commit political crimes against a vaguely defined national group.4 The French revolutionaries took a similar approach, declaring King Louis XVI guilty of treason because he had violated "the sovereignty of the people." Of course, in neither of these cases did "the people" put the king of trial. These kings were really executed for supposed crimes against the new regimes that replaced the old.
Abolishing monarchs certainly did not abolish prosecutions for political crime, however. Within a year of Charles's execution, the libertarian activist John Lilburne was prosecuted under Cromwell's republican government for supporting royalist causes and criticizing Cromwell. (He was found not guilty by a jury, but later exiled for the ideological crime of "libel.") And, of course, thousands of "traitors" were executed in the early years of the revolutionary French republic. Many were executed for merely being wealthy or members of the clergy. As we will see, this notion that people can be deemed political criminals by virtue of being members of a particular group will become especially important in totalitarian regimes.
The Twentieth-Century Proliferation of Political Crime
State crimes proliferated in the twentieth century, as made abundantly clear by the legal histories of the Third Reich and the Soviet Union.
Under the National Socialists, political crime took many forms. Naturally, any sort of physical resistance to the state police or military institutions resulted in draconian reprisals. It surprised no one that the planners of the July plot were executed as political criminals, for example. But peaceful resistance met hysterical responses from the authorities on the grounds that these dissidents were dangerous criminals. The members of the White Rose—i.e., Sophie Scholl, et al—were executed for various ideological crimes after distributing leaflets criticizing the regime. Austrian Farmer Franz Jägerstätter was executed for the political crime of conscientious objection.
Some subjects of the regime were declared political criminals and handed more severe penalties simply for their associations with various groups. Naturally, Jews were found guilty of political crimes known as "race crimes" for socializing with non-Jews. Countless communists were deemed political criminals for acts that would have been ignored or considered ordinary crime had they been committed by others. For example, Christian Goeschel details the case of petty criminal "Willi H.". "Willi" was handed fifteen years for manslaughter although his guilt was established without evidence and based primarily on his loose associations with communists.5 His "communism" earned him a label of political criminal which resulted in him being sent to Buchenwald concentration camp in 1943.
The Soviet Union offers countless similar examples. This was especially true in the days of Stalin, but countless political criminals were prosecuted throughout the life of the USSR for various crimes against the state.
The Soviet propensity for bringing new categories of human behavior under the umbrella of political crime was put firmly in place by the early 1930s. Early Soviet leaders had attempted to bring ordinary crime under control in order to claim that the Soviet state had established order following the coup and civil war that had brought the Bolsheviks to power. Thus, many harsh penalties were handed down to those found guilty of non-political acts of theft and murder. However, it quickly became more and more difficult to avoid charges as a political criminal after the introduction of the new political crime known as theft of "socialist property"—i.e., state property. In a time and place where the socialist state was the primary owner of all property, theft of government property was quite common. Regime supporters thus declared these thefts to be "assault[s] on the basic forms of Soviet society" and as such were punishable as political crimes.6 Naturally, defining the theft of a loaf of "socialist" bread as an attack on "society," made countless Soviet subjects more likely to be branded political criminals.
In the 1930s, many crimes were deemed political if the accused were regarded as being among "anti-Soviet elements."7 During this time,
officials defined crimes as more or less dangerous depending on the class background of those committing criminal acts. Thus, workers caught stealing were not considered dangerous criminals, while former tsarist bureaucrats or kulak land holders caught stealing were punished as counter-revolutionaries.8
After 1935, however, even the "workers" were targeted as political criminals should they steal government property. All such crimes were then labeled counterrevolutionary in nature and the result of tendencies toward "petty bourgeois anarchy"9 which threatened "socialist discipline."10 It's easy to see how under such conditions, virtually anyone could find himself accused of a political crime, as virtually any act might be construed as a type of bourgeois decadence and thus a threat to the entire social order.
The bias against political criminals did not disappear after the death of Stalin. As Soviet defense attorney Dina Kaminskaya noted, the rights of political defendants were far more restricted than those of ordinary criminals. Prosecution was prepared by the KGB which enjoyed unlimited leeway in how it conducted its investigation. Moreover, Soviet attorneys who accepted political cases were themselves subject to more legal restrictions than ordinary attorneys. Writing in 1982, Kaminskaya concluded that while ordinary criminals might reasonably hope for a fair trial based on unbiased consideration of the evidence, in political cases, "the rights of advocates and defendants alike are grossly infringed by the state."11
This dichotomy between ordinary criminal trials and political trials was not unique to the absolute monarchs of old or modern totalitarian regimes. Similar tactics certainly persists in the modern world and are employed today by regimes such as that in Saudi Arabia. Another tactic is to use secret court proceedings as done in the United States. Tribunals such as the Foreign Intelligence Surveillance (FISA) court tilts rules of evidence and other procedural matters against defendants in ways that would not be tolerated for ordinary criminal proceedings.
All Political Crime Is Relative
A key characteristic of political crime is that how we define it is largely dependent on the political context in which the acts in question take place. As Szabo notes, whether or not a political act is regarded as truly criminal is "contingent upon the current views and the dominant principles in any society."12 This is true to a certain extent with all crimes, of course. What constitutes justifiable homicide can vary from one society to another. Definitions of ordinary crimes tend to be relatively stable over time, however, while one's status as a political criminal can change rapidly—virtually overnight in many cases. Stephen Schafer notes, for example,
The Hungarian Revolution offers a modem example of abrupt and rapid changes in the norm-making power structure. At the time of the revolution in 1956, criminals turned into heroes and then back into criminals, while law-abiding citizens changed to criminals and then back to conformists—all within eight days."13
This phenomenon was increasingly documented and evident by the nineteenth century in the wake of events such as the American Revolution, the French Revolution, and similar events. Nikos Passas writes, "After the French revolution of 1830 the frequency of revolutions and the ongoing differentiation of political regimes made obvious the relativity of the notion of "political offence."14 Events such as these present a problem for dogmatic supporters of regimes against political criminals—especially of the ideological kind. If one can observe that the same person—without any change in behavior—can be a political criminal on Monday but a non-criminal of Friday, it becomes easier to see how many reasonable people could detect the absurdity of the notion that loyalty or support for any particular political regime is tied to any immutable or universal moral code.
Consequently, as Otto Kirchheimer described it "... the nineteenth century showed increasing indulgence to those who strayed from the accepted political and social norm. This did not happen furtively or underhandedly. Gradually, if fitfully, man's right to cast doubt on the foundations of established political patterns came to be openly recognised."15 In other words, it became increasingly clear to many that one man's political criminal is simply another man's hero. What many regimes labeled political "crimes" were increasingly defined as morally legitimate political protest.16
Classical Liberal Skepticism of Prosecutions of Political Crime
This shift was not due simply to historical events, however. The growth of "classical" liberalism as an ideological force throughout western Europe confirmed the moral legitimacy of opposition to one's ruling regime. The American Revolution—which continued to be an inspiration to countless political activists across Europe in the nineteenth century—confirmed that even armed rebellion could be justifiable. This, of course, was expressly endorsed by Thomas Jefferson and other American secessionists in the American Declaration of Independence. An individual example of how political criminals can easily transform into legitimate "founding fathers" is John Adams. Held by the British crown to be a traitor from 1776 to 1783, Adams was by 1785 received at court as a respectable diplomat by George III.
True to form, the more liberal faction among the Americans—i.e., the "anti-Federalists"—insisted on strict limits on political crimes as listed in the First Amendment to the new constitution. The Amendment prohibits Congress from criminalizing speech, protests, petitions, and other forms of political dissent often labeled as political crimes by other regimes. Unfortunately, the liberals of this era did bow to listing one political crime in the text of the new US Constitution: treason. Even in this case, however, the definition of treason was limited to "levying war" against the United States so as to avoid the common historical problem of regimes defining treason as any number of activities the regime disliked.
Unfortunately, liberal skepticism of the legitimacy of political crimes—increasingly prominent in the nineteenth century across the West—was greatly eclipsed by the twentieth century and into the twenty-first century. This has been true even in the state most known for liberal sentiment—the United States. The growth in the US of secret courts, mounting prosecutions for "seditious conspiracy," attacks on independent journalists, and growing calls for direct state censorship of "misinformation" illustrate several ways the American regime can turn the screws on regime opponents. Efforts to prosecute such "crimes," wherever they take place, represent a direct threat to freedom and political dissent.
- 1. M. Denis, Szabo, "Political Crimes: A Historical Perspective," Denver Journal of International Law and Policy 2, no. 1 (January, 1972): 10.
- 2. Martin Van Creveld, The Rise and Decline of the State, (Cambridge: Cambridge University Press, 1999) p. 67.
- 3. Szabo, "Political Crimes," p. 13.
- 4. Samuel Rawson Gardiner, ed., The Constitutional Documents of the Puritan Revolution, 1625-1660 (Oxford: Clarendon Press, 1906) p. 373.
- 5. Christian Goeschel, "The Criminal Underworld in Weimar and Nazi Berlin," History Workshop Journal, no. 75 (Spring 2013): 69-70.
- 6. David R. Shearer, "Crime and Social Disorder in Stalin's Russia," Cahiers du Monde russe 39, no.1 (January-June 1998): 137
- 7. Khlevniuk, O. V., The History of the Gulag: From Collectivization to the Great Terror.
Translated by Vadim Staklo. (New Haven: Yale University Press, 2004), p. 145.
- 8. Shearer, "Crime and Social Disorder," p. 138.
- 9. Ibid.
- 10. Ibid.
- 11. Dina Kaminskaya, Final Judgment: My Life as a Soviet Defense Attorney (New York: Simon and Schuster, 1982) p. 31.
- 12. Szabo, "Political Crime," p. 10.
- 13. Stephen Schafer, "The Concept of the Political Criminal," Journal of Criminal Law and Criminology 62, no. 3 (1972): 381.
- 14. Nikos Passas, "Political Crime and Political Offender: Theory and Practice," Liverpool Law Review (January 1986): 25-26.
- 15. Otto Kirchheimer, Political Justice: The Use of Legal Procedure for Political Ends (Princeton, NJ: Princeton University Press, 1961), p. 32.
- 16. In many ways, this signaled a return to medieval political ideology which had limited the powers of princes and had differentiated between treason and legitimate resistance to a tyrant. In fact, the right to revolt against tyrannical rulers is specifically recognized in the Magna Carta of England in 1215, in the Golden Bull of Hungary in 1222, in the Peace of Fexhe of the Principality of Liege, and in the Joyeuse Entrée of Brabant in 1356. Later "Renaissance" absolutist theorists contended that subjects owed unqualified allegiance to the monarch.