Beccaria’s Political Theory of Criminal Justice

Lorenzo Zucca

On 12^th of April 1764, the citizens of Milan witnessed the brutal killing of Bartolomeo Luisetti. Bartolomeo had been condemned to death after being accused of sodomy. He was killed by asphyxiation and then burnt at the stake in front of the crowd. Throughout Europe, ruling elites believed that criminal justice had to be done and to be seen to be done; and criminal punishment had to be cruel so as to instil the fear of God in the people watching the gruesome spectacle. Beccaria observed the scene with horror. It was hard to believe that such cruelty could be regarded as a rational response to crime. At the time of the event, Beccaria was only in his mid-twenties, but already had strong political and philosophical views. In the same year, Beccaria’s On Crimes and Punishments was published.

His manifesto against cruel punishment and abuse of power spread through Europe like a wildfire and inspired radical reforms of repressive and coercive institutions throughout the continent. But what made Beccaria’s tract so popular with enlightenment rulers and thinkers? My hypothesis is that Beccaria managed to offer a vision of radical reforms that would follow a rational, and moderate, path. It pleased Les Philosophes and the administrators in equal measure. His novelty resided in the criticism of criminal law from the viewpoint of those who were immediately affected, rather than from the viewpoint of the lawyers. It was a Copernican revolution in perspective and one that stood with the many against the few privileged ones.

There are two key insights in Beccaria’s political theory of criminal justice. Firstly, the law should not be an instrument of oppression but rather a tool to foster life in common. Secondly, to constrain the abuse of political power every political system needs constitutional guarantees that minimize the interference of criminal law in people’s lives and promote social welfare policies so as to prevent crime.

1. Beccaria’s legal and political philosophy
   1. The Context: Inequality

For the most part, men leave the care of the most important regulations either to common sense or to the discretion of individuals whose interests are opposed to those most foresighted laws which distribute benefits to all and resist the pressures to concentrate those benefits in the hands of a few, raising those few to the heights of

1

power and happiness, and sinking everyone else in feebleness and poverty. 1

Beccaria wrote Crime and Punishment in 1764, twenty-five years before the French Revolution. Europe was then a profoundly hierarchical society, where a few privileged people ruled over the entire population with an arbitrary and unaccountable authority. Enlightenment philosophers condemned inequality as the germ of social injustice, and Beccaria was passionate about it even though he belonged to an aristocratic milieu. He was a member of the academy of fisticuffs, a group of young Milanese aristocrats who rebelled against the stifling oppression of the local élite, which included their families.

The interests of the few systematically trumped the interests of the many, and the laws were designed to increase the power of the few while keeping the many under the thumb. That situation afflicted Milan, Italy and Europe. Beccaria and his young fellow pugilists had the ambition to radically reform their society, the institutions and the laws. It was an ambition shared by all enlightenment thinkers in Europe, although the means to achieve that reform were the object of disagreement. We know that France took a revolutionary path, while Milan engaged in steady reforms from within; indeed, Beccaria and other pugilists were to play an important part in the local administration.

European enlightenment thinkers agreed that the Church was one of the strongest forces of inequality and subjection, and religion was the instrument of mass control. Italian publicists – scholars of political philosophy and public law– never ceased to be inspired by Machiavelli’s central idea; namely, that Christian morality is incompatible with the morality of Civic Republicanism.² The former is passive and requires obedience to the established authority, while the latter is active and demands participation in the political affairs of the city. Everyone must strive to take an active part in the running of the city. In this way, institutions and laws will reflect the interests of the whole society, and not just the vested interests of the privileged ones.

It is with the interest of the many in mind that Beccaria formulated his famous motto: la massima felicità divisa nel maggior numero (the greatest happiness shared among the greater number), which was subsequently adopted by Bentham. Beccaria sees this maxim as the centrepiece of a new science, whose object is human society and whose name is ‘the science of man.’ His ultimate intellectual ambition was very close to Hume’s project. Beccaria’s keen interest on mathematics and the

1 Cesare Beccaria, On Crimes and Punishments, CUP, p. 7

2 Machiavelli, Discorsi; see also Isaiah Berlin’s essay on Machiavelli.

2

sciences is poured into the development of political economy; indeed, Beccaria’s first public appointment was to the chair of political economy, the second oldest chair of its kind in the world. Political economy in the eyes of the pugilists aimed to replace religion as the guiding light of human behaviour:

“Now everyone speaks of public economy as if it were religion,” the Vallumbrosan monk Ferdinando Facchinei lamented in a 1764 manuscript held in the Venetian state archives. His fear was that while the lives of individuals and the ideals of societies alike traditionally had been understood and evaluated in theological terms, what we might call an “economic turn” was in the process of dramatically recasting how Europeans conceived of themselves and of their polities.3

Political economy for Beccaria was not just a tool with which to administer the state more efficiently; it was a Copernican revolution on how to understand the place of man in the society, and the importance of reconceiving politics to serve the interests of the society. Political economy aimed to be the science of happiness and was intended to replace religion which was perceived as the source of misery.

Beccaria was aware that a lot of progress had been achieved in public matters through political economic reforms. Trade replaced wars, the press spread new ideas, and the relation between sovereign and subjects had been reconceived. But he also noted that little had been said and done about the cruelty and arbitrariness of criminal laws, the most immediate and visible display of brute force which had not yet been rationalised. It was not uncommon in those years to see people condemned to death and brutally ravaged in the public square.

Beccaria’s On Crime and Punishment was the first attempt to apply the principles of political economy to the practice of punishment with the intent of humanising and rationalising the use of coercion on the part of the state. After all, arbitrary and cruel punishment was the most immediate and visual instrument the state had to terrorise the people into submission, so as to avoid rebellion against the hierarchical structure of the society.

The problem that Beccaria faced then was the simple fact that the élite had the complete control of the law, which was a highly esoteric language that only the initiated could master. The path leading to the rational reform of penal law required first and foremost a fundamental philosophical rethinking of the role and place of the law in the society.

3 Reinert, Sophus A., The Academy of Fisticuffs: Political Economy and Commercial Society in Enlightenment Italy (Kindle Locations 57-61). Harvard University Press, 2018. Kindle Edition.

3

2. Methodology: De-Mystifying law

A few odd remnants of the laws of an ancient conquering race codified twelve hundred years ago by a prince ruling at Constantinople, and since jumbled together with the customs of the Lombards and bundled up in the rambling volumes of obscure academic interpreters—this is what makes up the tradition of opinions that passes for law across a large portion of Europe.4

Beccaria’s project was to dismantle the edifice of Roman law, which he mockingly refers to as ‘a few odd remnants of the laws of an ancient conquering race codified twelve hundred years ago by a prince ruling at Constantinople.’ The law, as Beccaria has studied it in Pavia, is an arcane language of power controlled by a very narrow élite; its shape and content are hardly clear as it is made of the odd admixture of Roman law, local customs, and it is ‘bundled up in the rambling volumes of obscure academic interpreters.’ The opacity and abstrusity of the law are deliberate and instrumental to the control of the people.

Beccaria was a trained lawyer as well as a published mathematician; but it was philosophy that was central to his mission of reform. On Crime and Punishment was the first glaring model of an excoriating work of censorial jurisprudence. As HLA Hart reminded us: “Bentham admired Beccaria not only because he agreed with his ideas and was stimulated by them but also because of Beccaria’s clear-headed conception of the kind of task on which he was engaged. According to Bentham, Beccaria was the first to embark on the criticism of law and the advocacy of reform without confusing this task with the description of the law that actually existed.”⁵ Beccaria’s work is entirely censorial; he’s the first legal philosopher to keep the distinction between exposition and criticism of the law very clear in his mind.

Philosophy was the critical tool with which Beccaria wanted to revolutionise the way in which European societies thought about law. He was not even remotely interested in what the law said as the whole system was designed to minimize the interests and the voice of the people. The rule of law was at the time of his writing a chimera, since law obeyed the rule of lawyers and catered for the interests of the ruling élite.

There is a name for this critical endeavour: the demystification of the law. Beccaria was the founder of this approach that will become a great tradition in the philosophy of law. Bentham, HLA Hart and Raz understand that the law is a mere instrument and cannot be venerated or mystified: “The words ‘mystification’ and

4 Beccaria, above n 1 at 3.

5 Hart, H. L. A.. Essays on Bentham: Jurisprudence and Political Philosophy (p. 41). OUP Oxford. Kindle Edition.

4

‘demystification’ have appeared fairly recently among us in the literature of the radical New Left. The central idea that these words are used to express is that unjust, anachronistic, inefficient or otherwise harmful social institutions, including laws, are frequently protected from criticism by a veil of mystery thrown over them.”⁶

Beccaria was a pioneer of the philosophical criticism of the law. He was among the first to apply rational scrutiny to that social institution that had always been presented as unassailable. He was certainly the first who applied that rational critical spirit of observation to the institutions of criminal justice. Beccaria’s contribution to the philosophical methodology was monumental. But we should not forget that that philosophical turn had a great ambition of social, political and institutional reform.

Firstly, the law as practiced until then should be discarded: it was impossible to navigate the innumerable sources of roman law, customs and academic opinions. The law had to be democratised and that meant one simple thing: the source of the law must be one and only one, that is to say legislation. Of course, the idea had already been expounded by Rousseau who argued for the the law to be the expression of the general will. Beccaria reasserted it and clarified its importance by putting his finger on the problem of law as it was practiced. The obvious consequence for criminal laws was to demand legislative codification of the crimes and their punishment. Beccaria embraced the movement of the penal code and helped to spread that idea in many parts of Europe, including Russia where he was invited by the empress Catherine the Great to advise her on penal reforms.

Beccaria was a proto legal positivist, and the first to defend a very robust source thesis, not with the intent to explain the law as it was, but instead with the intent to shape the law around the sole source of legislation. Demystification went hand-in-hand with an obsession for clarity and a revulsion for the obscurity of the laws which was an evil in itself and also called for a second evil: the discretionary interpretation of the laws. “And it is the greatest of evils if the laws be written in language which is not understood by the people and which makes them dependent upon a few individuals because they cannot judge for themselves what will become of their freedom or their life and limbs, hindered by a language which turns a solemn and public book into what is almost a private and family affair.”⁷

Beccaria was very sceptical of the social and political function of lawyers and judges and for this reason he was also very sceptical

6 Hart, H. L. A.. The Demystification of the Law, Essays on Bentham: Jurisprudence and Political Philosophy (p. 21). OUP Oxford. Kindle Edition. 7 Beccaria, above n 1 at 17.

5

of judicial interpretation and judicial law-making. That view was fairly established in the continent, less so in the English speaking world; but even so, Bentham and Austin adopted Beccaria’s “constant insistence […] that the law should consist of general enactments of the legislature and that these should be both as comprehensive and as clear as possible and that judicial law- making and discretion even under the name of interpretation should be reduced to the minimum.”⁸

Beccaria insisted that “the judge should construct a perfect syllogism about every criminal case: the major premise should be the general law; the minor, the conformity or otherwise of the action with the law; and the conclusion, freedom or punishment. Whenever the judge is forced, or takes it upon himself, to construct even as few as two syllogisms, then the door is opened to uncertainty.”⁹ Beccaria was opposing the abuse of power of judges and lawyers; on this point he is very much in disagreement with Montesquieu, who believed that the courts were well placed to protect the general interest. Of course, the role Beccaria gave the judiciary was too rigidly constrained and could not be a realistic idea of the judiciary’s task. As we saw, Beccaria was not describing anything; rather he was criticising the excessive power of the legal professions. What was remarkable was that Bentham and Austin followed Beccaria in shaping the division of labour between legislative and judiciary, and for this reason “Bentham and his illustrious pupil Austin have often seemed to English lawyers un-English.”¹⁰ If we put these views in context, they make more sense. Beccaria and Bentham disapproved of ex post facto legislation by the judiciary: they believed that that legal certainty about crimes, and a strictly quantifiable cost of disobedience, were fundamental for their reformist projects.

3. Beccaria’s conception of Political Justice

Divine justice and natural justice are both essentially unchanging and constant, since the relation between two objects which remain the same is always the same. But human or political justice, being nothing but a relation between an action and the varying state of society, can vary according to how necessary or useful the action is to society. Nor can human justice be well understood except by one who has analysed the complex and ever-changing relations of civil association. As soon as these essentially distinct principles are confused, all hope of thinking clearly about public affairs is lost.11

8 Hart, H. L. A.. Essays on Bentham: Jurisprudence and Political Philosophy (pp. 47-48). OUP Oxford. Kindle Edition.

9 Beccaria, above n 1 at 14

10 Hart, H. L. A.. Essays on Bentham: Jurisprudence and Political Philosophy (p. 47). OUP Oxford. Kindle Edition.

11 Beccaria, above n 1 at 5.

6

Beccaria’s project of rationalising law extended also to politics, and in particular to the understanding of political justice and political order. To begin with, he drew a tripartite distinction between divine, natural and political justice. He also explained that there were three sources of normativity: revelation, natural law and the conventions arrived at by society. By singling out the conception of human laws as conventions, Beccaria opened a door for the “great tradition in the philosophy of law which is realist and unromantic in outlook. It regards the existence and content of the law as a matter of social fact whose connection with moral or any other values is contingent and precarious.”¹² With this move, Beccaria wanted to free the society from the grip of traditionalists driven by theology as well as moralists like Grotius and Pufendorf who attempted to shape natural justice in the image of divine justice, but without the theistic assumption: “etiamsi deus non daretur [even if God didn’t exist],” as Grotius put it.

Traditionalists and moralists conceived of justice as a system of unchangeable norms, the truth of which does not depend on local circumstances or contingencies. Beccaria’s conception of political justice is independent from divine and natural justice. Political associations are like living creatures: they are born, live and perish; in other words, they change and evolve and respond to local factors and local challenges. Political justice cannot be conceived as “the relation between two objects which remain the same.”¹³

Beccaria resisted traditionalists by denying their eschatology: human freedom and human goals can only be evaluated within the realm of immanent civil societies. Divine justice addressed intentional wrongdoing, commonly defined in religious language as sin. Sin had to do with intentions and a man’s heart. It was within God’s jurisdiction to punish this kind of wrongdoing. Civil societies, insisted Beccaria, had jurisdiction on crimes, which must be separated from sins. A crime is what damages society, and the crime’s cost to the society can be measured.

Traditionalists and Beccaria nevertheless had some points of agreement: both believed that men seek their own interest and are inclined to follow their passions; that means that they can hardly be guided by reason. As a result, Beccaria distanced himself from moralists who were described as living in a world of fiction far removed from reality: reason is not capable of guiding us to negotiate a contract that is in everyone’s interest.¹⁴

12 Raz, Authority, Law, Morality.

13 On this point, Beccaria echoed the great Republican tradition and more precisely the views of Montesquieu.

14 On this point, Beccaria echoed the influence of Machiavelli and Spinoza, in particular Spinoza’s criticism of Hobbes’ contractualism.

7

Beccaria not only resisted assimilation with traditionalists and moralists, but also with Hobbes. We certainly want to escape human chaos, but that does not mean that we ought to transfer all our rights in exchange of our security. Beccaria insisted that we only give up a portion of our rights, and we do so grudgingly because our human passions are opposed to the full abandonment of our power.

Beccaria’s idea of the political order is very modern. The political order is purely immanent and law within it is a matter of social fact. The connection between social facts and morality is contingent. It is possible to subject social facts to a rational inquiry in order to assess their contribution to the welfare of the society. At this point, we can distinguish two opposite schools of political economy. One school proposes a sharp distinction between the natural order of the economy and the artificial order of law and punishment. It is the school of free-marketeers that counts Physiocrats like Quesnay among his greatest proponents. The idea is that commerce must be left as unregulated as possible. The other school believed instead that the rationalisation of the economic domain should be extended to penal practices, and in return penal discipline should be used to regulate and prevent the distortions in the economic domain.

Some have argued that Beccaria and his fellow pugilists were prototypical socialists: “In fact, Facchinei’s censure of the rise of political economy as an organizing discipline of worldly existence went hand in hand with his equally intriguing charge that Beccaria was a “socialist,” in what marked the term’s earliest known vernacular appearance.”¹⁵ The charge came from two opposite directions; Facchinei was a traditionalist who dreaded the rise of political economy as an immanent replacement of religion. But Beccaria was also criticised by the Physiocrats and other free-marketeers because his understanding of the role of the state in the economy paved the way for a demanding degree of re-distribution and social justice. Beccaria’s political order was defined in terms of social facts that were under the control of human action; He believed that not only was it possible to rationalise the control of human action, but that the point of political institutions was to do so with the aim of maximising happiness for the greatest number.

4. Beccaria’s Political Philosophy

15 Reinert, Sophus A.. The Academy of Fisticuffs: Political Economy and Commercial Society in Enlightenment Italy (Kindle Locations 77-79). Harvard University Press. Kindle Edition.

8

Beccaria’s political theory is dominated by three different ideas that many philosophers would regard as incompatible: utility, political freedom, and the social contract. In his account, utility and political freedom are in conflict one with the other, and the social contract is the fruit of the compromise between the two. Let us have a look at each idea separately before we look at how they can hang together.

Some call Beccaria utilitarian, but that is a mistake: they are assuming too quickly that Beccaria is a predecessor of Bentham in ethical matters. The mistake is understandable since Bentham himself acknowledged his debt to Beccaria with regards to the formulation of the principle of utility and the focus on criminal punishment. However, the similarities end there, and the differences are much more important. Bentham himself voiced his criticism of Beccaria whose “terminology and certain specific forms of argument […] seemed laden with confusion and bad metaphysics.”¹⁶ Beccaria used the language of the social contract, natural rights and even that of dignity. The idea that natural rights could limit sovereignty was deemed by Bentham an absurdity. HLA Hart concluded that:

if Beccaria was a utilitarian his utilitarianism was qualified in ways which Bentham thought absurd. Quite apart from the doctrine of social contract and of the rights created by it there is in Beccaria a respect for the dignity and value of the individual person which is absent in Bentham. This absence indeed at times gives to some of Bentham’s speculations an almost inhuman flavour; as if he was concerned with manipulable and predictable animals or machines— pleasure and pain machines—rather than men. Indeed one can find contrasting texts on this very point, though too much importance should not be attached to them as they relate to very different matters. Beccaria says ‘there is no liberty when the laws permit that in some circumstances a man can cease to be a person and become a thing.’17

Beccaria’s idea of utility was not to the exclusion of the idea of human dignity. Indeed, you can even read in the last sentence cited above an early formulation of Kant’s categorical imperative.¹⁸

For Bentham, utility is central to his philosophical doctrine, to his meta-ethics, his moral theory, and his normative politics. Not so for Beccaria. Beccaria sharply distinguished between moral theory and political science. He does not have an interest in meta-ethics and his political philosophy uses the metaphor of the

16 Hart, H. L. A.. Essays on Bentham: Jurisprudence and Political Philosophy (p. 49). OUP Oxford. Kindle Edition.

17 Hart, H. L. A.. Essays on Bentham: Jurisprudence and Political Philosophy (pp. 50-51). OUP Oxford. Kindle Edition.

18 Even though Kant was critical of Beccaria, it cannot be excluded that Beccaria’s formulation shaped Kant’s.

9

social contract which is explicitly rejected by Bentham. For Beccaria, the principle of utility is just because it is willed by the people, it is not willed by the people because it is just; indeed, a society can decide to overrule an outcome that is supported by utility, since the utility for the society is determined by will of the society itself.

From this viewpoint, Beccaria’s conception of utility is much closer to the European tradition of political thought that arks back to Machiavelli and which focuses on the ideas of interest and utility interchangeably. Since Machiavelli, several political theories have put utility at the centre of their attention and have regarded it as an anthropological truth about human nature. Hobbes, Spinoza, Mandeville and Helvetius have all put utility or common interest at the centre of their political stances: they share a clear pessimism about human rationality, and they want to take human desires, passions and interests seriously. Beccaria is following them rather than preceding Bentham: utility is an element of his theory of the state in so far that utility can trump morality and it is also an element of his criminal theory in so far that criminal law can perform the useful functions of deterrence and prevention of crime.

At first, justice seems to pull in the opposite direction of utility. However, we have to remember that Beccaria focuses on human or political justice as opposed to divine and moral justice. Political justice only exists because of the creation of a political society which is a free association of men through the social contract. People agree to come together on the basis of the social contract because of necessity: the contract is a necessary condition to enjoy political freedom. The people agree to trade natural (unregulated) freedom for political (regulated) freedom because they prefer to have a guarantee of a certain freedom rather that the uncertainty that comes with limitless freedom for all. The contract transfers a minimum amount of natural freedom to the state that becomes the ultimate guarantor of political freedom.

The authority of the state is legitimate if and when it protects the common reservoir of freedom pooled together by the people. But at the same time, the sovereign authority is limited by utility: the sovereign has the right to do what is useful to protect political freedom. But what if the sovereign wants to limit equality on the basis of utility? Beccaria has an economic answer: the industriousness and productivity of a society is increased if the greatest number of people is in a position to contribute to the general welfare: it is always useful to the society to protect equality, and always injurious to the general welfare to allow a few people to enrich themselves at the expenses of the rest. The

10

example shows that common interest or utility is the basis of political justice and it is not incompatible with it.

Common interest has motivated people to come together in order to lessen the uncertainty of the state of nature and to start enjoying political freedom, that is to say that limited freedom whose domain and protection are made certain by the existence of a legitimate authority. As mentioned above, political freedom is the opinion of one’s own security in the society. Feeling secure means to dispel the feeling of uncertainty and that is the ultimate goal of the political society. Political Freedom for Beccaria is capable of trumping utility since people are motivated to come together and pool their common interest together for the sake of creating political freedom; but if that result was not forthcoming, then their very interest in maintaining the pact would be debased.

Political freedom is a psychological, qualitative state and not something that can be measured. It is realised when I know that I can do x, other people know that I can do x, and I know that other people know that I can do x. This feeling is immaterial, the law cannot quantify or define the areas of freedom. However, the law can certainly help by giving clear and predictable guidance with regard to permissions and prohibitions, which will in turn result in the feeling of security. Indeed, as Montesquieu put it, Criminal Law’s aim is to guarantee political freedom.

Utility and Political freedom are in perpetual, apparent conflict, and it is the social contract that balances and reconciles the two concerns. The social contract is not a moment of ideal celebration for Beccaria. People grudgingly accept to sign a pact with each other, and they are always tempted to break the pact to foster their own advantage. What moves them to sign the pact is the feeling of uncertainty, which makes it impossible to enjoy their natural freedom to act according to their immediate passions. That only leads them into conflict, and conflict leads to less natural freedom rather than more. The uncertainty as to how to exercise natural freedom leads everyone to accept a basic necessity: something has to be given away in order for everyone to enjoy political freedom.

A portion of natural freedom must be sacrificed in order to establish political freedom. The latter is the only actual freedom, since the former cannot be exercised without leading to conflict. The sacrifice is grudgingly accepted only because it is strictly necessary. However, it is clear that people can only be moved by necessity to accept the minimum possible sacrifice of natural freedom for the sake of achieving political freedom in a more just civil order. The transferral of the minimum portion of natural

11

freedom results in the transformation of natural freedom into political freedom.

Everyone’s minimum portion of natural freedom constitutes the public deposit of sovereignty which is the basis for the right to punish those actions that are injurious to the human society. The right to punish is described as a necessary evil that is exercised by the sovereign in order to respond to the radical uncertainty created by the unfettered exercise of natural freedom.

Beccaria’s originality does not lie in developing innovative interpretations of utility, political freedom or the social contract. His originality lies in the way he combines them to arrive at a compromise between freedom and utility in the name of justice. As far as criminal justice is concerned, the right to punish must be as narrow as possible to be considered as legitimate. The conclusion of On Crime and Punishment could not be clearer: In order that punishment should not be an act of violence perpetrated by one or many upon a private citizen, it is essential that it should be public, speedy, necessary, the minimum possible in the given circumstances, proportionate to the crime, and determined by the law.¹⁹

This conclusion sets in motion a cultural revolution. Beccaria’s little tract is the symbol of a philosophical movement that was bent to replace entrenched forms of knowledge that were used by the élites to preserve their privileges. The traditional understanding of law was arcane and inaccessible. Beccaria wanted to replace it with a clear and demystified conception of the law as the product of social fact, the sole source of which would be legislation. Beccaria also knew that religion was still a potent source of normativity that was used to keep the masses in their place. That is why he embraces enthusiastically the turn to political economy as a source of knowledge that government could use to rationalise its policies in terms of measurable properties. It is important to stress, however, that it was Beccaria philosophical method of censorial –today we would say normative or evaluative—jurisprudence that shaped his understanding of law and political economy. He used philosophy to undermine the grounds of ancient law and to carve out an immanent domain of politics, free from traditionalist and moralist understandings of justice.

19 Beccaria, above n 1 at 113

12

2. Beccaria’s political theory of criminal justice
   1. Secularising Crime

My topic is solely those crimes which arise from human nature and the social compact, and not those sins whose punishments, even in this life, ought to be regulated by principles other than those of a limited philosophy.20

The birth of modern criminal law is closely tied to the secularisation of criminal justice. Beccaria, thorough his tract, contributed more than anyone else to separate the domain of crime from the domain of sin. Only god can be the judge of sin; divine justice will be ruthless and implacable, and the sin will be repaid with full retribution. And if the Church insists on temporal punishment of sins, it will still have to be based on different grounds than punishment for crimes. Sin is a wrong against the order created by God, whereas crime is an action which violates “human nature and the social compact.”

Beccaria carves out a special role for philosophy, which he is quick to call human as opposed to divine philosophy, otherwise known as theology. Sin and its punishment, be it eternal or temporal, have nothing to do with crime and punishment in the immanent world. The two have to be kept separate; not only that: the way in which crime is defined and punished has a different logic from the way in which sin is defined and punished. Divine justice works in a vertical, top down, fashion. It has its own structure and its own principles. But the modern European society aims to remove its vertical structure and introduce the organising principle of equality by abolishing social ranks. Whatever brings back or entrenches pre-existing privileges is a crime against the political association.

Retributivism resists this suggestion and insists implicitly or explicitly that the logic of crime is the same as the logic of sin: there exists a pre-legal realm of wrongdoing, whether it is defined in theological or philosophical terms matters little, and criminal law must respond to that wrongdoing. Criminal law would thus be driven by legal moralism. Beccaria rejects this logic of crime. In his view, every society is formed with a political aim that is independent from other moral values; broadly defined, the aim of political association is political freedom; crime is defined in relation to the violation of this political aim.

20 Beccaria, above n 1 at 100. Beccaria’s book was blacklisted by the Church, but that did not prevent it from becoming a work of reference.

13

But how do we make political freedom more precise? The answer is in Chapter 7: “the one true measure of criminality is the damage done to the nation.” This formula is enshrined in the French Declaration of the Rights of Man and of the Citizen in its article 5: “The law has the right to forbid only those actions that are injurious to society.” Art. 5 needs to be read in conjunction with art. 4 that states: “Liberty consists in the freedom to do everything which injures no one else; hence the exercise of the natural rights of each man has no limits except those which assure to the other members of the society the enjoyment of the same rights. These limits can only be determined by law.” The French Declaration asserts the principle of freedom of action within the free political association, unless an action wrongs society in which case the criminal law can set the appropriate prohibitions.

Beccaria inspired the drafters of the French Declaration, which entrenched a substantive limitation of crime. As William Stuntz put it: “The French Declaration seems almost ideally suited to limiting the power of too-powerful law enforcement agencies, and the Declaration severely limits legislatures.”²¹ In chapter 8 Beccaria furthers the point by ranking, according to their harm to society, three different types of crimes: “Some crimes directly destroy society or its representatives. Some undermine the personal security of a citizen by attacking his life, goods or honour. Others still are actions contrary to what each citizen, in view of the public good, is obliged by law to do or not do.”

Injury to society is the only accepted measure of crime. There we have a criterion of criminalisation, which allows for substantive evaluations. Beccaria does that by appeal to his notion of common utility. Any action that damages common utility constitutes a public injury and for that reason it is criminalizable. The legislative body has the power to determine what is injurious to common utility in order to draft the penal code. It may be argued that Beccaria’s formulation of the utility principle is maximalist and can therefore increase the number of crimes. But there are guarantees against that, which I discuss below.

2. Rationalising Punishment

Every punishment which is not derived from absolute necessity is tyrannous, says the great Montesquieu. A proposition which may be generalised as follows: every act of authority between one man and another which is not derived from absolute necessity is tyrannous. Here, then, is the foundation of the sovereign’s right to punish crimes: the necessity of defending the repository of the public well- being from usurpations of individuals. The juster the punishments,

21 William J. Stuntz. The Collapse of American Criminal Justice (Kindle Locations 982-983). Kindle Edition.

14

the more sacred and inviolable is the security and the greater the freedom which the sovereign preserves for his subjects.²²

Punishment is legitimate only when it guarantees the protection of common utility. It does so when it changes the way in which we feel towards our opinion of our own security. If the existence of a limited right to punish makes us feel more certain about our own political freedom, then punishment is legitimate. Its function is chiefly psychological: it aims to deter people from committing crimes and by doing so it also seeks to prevent the repetition of the crime by instilling the certainty that an action will be meted with sure consequences. In order to achieve this, political institutions have to work according to a precise framework and follow strict constitutional (political) rules.

Common utility determines the level of punishment for each crime trough the principle of proportionality. There must be a clear scale of crimes that correspond to a proportional scale of punishment—proportional, that is, to the level of injury to the common utility. The ranking must be clear to buttress the feeling of certainty in political justice. If a punishment was perceived to be disproportionate from the viewpoint of public morality, it would do more harm than good. Finally, Beccaria’s criminal theory sets a prohibition for useless punishment: if there is not utility to be gained by the society, then the punishment cannot be justified.

Rationalising punishment means to minimise the quantity and quality of violence within the society. Not only the violence attached to crimes, but also the violence entailed by the reaction to crimes by private parties and by public authorities. The goal of modern secular criminal law in the eyes of Beccaria was to regulate the right to punish and eradicate from its practice all forms of vengeance and religious creed. The idea of rationalising punishment has its advocates and its detractors. Advocates understand that cruel and arbitrary punishment does not build a robust sense of trust in the public authority; they also believe that punishment might be a necessary deterrent against the use of private and public violence, so they accept punishment as expressing the society’s commitment against violence. On the other hand, detractors believe that rationalising punishment amounts to giving the state a more efficient instrument with which it could control and discipline us. But for Beccaria the project of rationalising punishment had a deep reformist meaning. It meant moving from a society that wielded punishment as a weapon of mass control to a society in which punishment would only be the last resort.

Commented [se1]: 1. The connection between the feeling of security and the deterrent effect of punishment needs to be spelled out. Unless explained, the connection may seem tenuous.

2. It could also be interesting to say something about the dual role of psychology: both in instilling security and imparting fear of punishment – indeed instilling fear through the impartation of punishment.

22 Beccaria, above n 1 at 10.

15

According to Beccaria, penal law is the law of the weakest or most vulnerable. It replaces the law of the privileged and aims to protect those who are at the mercy of power and violence. But the idea of violence depends on the relative power relation between two individuals or parties, and it changes with the context. Criminal law is organised in different stages, and at every stage the weakest party is different: At the moment of the commission of the crime, the weakest party is the victim; during trial the weakest party is the accused; and finally, at the stage of the execution the weakest is the party who has been found guilty. Penal law protects the weakest against abuse of power and violence at every stage.

3. Constitutionalising Criminal Law

The principle of legality is at the centre of Beccaria’s constitutional understanding of crimes. Laws must be clear, simple and easy to uphold. To promote crime prevention, the state does not have to multiply the number of prohibitions; that only turns more citizens into criminals and disperse public resources. Prevention can be achieved by having fewer and clearer laws that are implemented strictly. The rule of law creates a healthy fear of state institutions, whereas the rule of men (magistrates with discretion) turns men into slaves; devoid of freedom men tend to be less virtuous and more vicious.

William Stuntz discusses this idea in The Collapse of the American Criminal Justice System. The “collapse” is an outcome of the unfettered exercise of power of the police in defining crime: “Law enforcers—state troopers and local cops—define the laws they enforce.”²³ It is also the consequence of overcriminalisation: “Too much law amounts to no law at all: when legal doctrine makes everyone an offender, the relevant offenses have no meaning independent of law enforcers’ will. The formal rule of law yields the functional rule of official discretion.”²⁴

Constitutionalising criminal law means to create a number of substantive and procedural guarantees against the abuse of power and in favour of limitation of power. There are several layers to (and guarantees of) the constitutionalisation of criminal law. The first has already been sketched: legality contributes to clarifying, systematizing and minimizing criminal laws. On the continent, that resulted in the movement for penal codification. Beccaria hoped to meet the challenge of uncertainty by

23 William J. Stuntz. The Collapse of American Criminal Justice (Kindle Location 40). Kindle Edition.

24 William J. Stuntz. The Collapse of American Criminal Justice (Kindle Locations 45-46). Kindle Edition.

16

instituting the principle of legality of crimes and punishments. Beccaria’s insistence on certainty through the principle of legality also had surprising consequences: Beccaria argued that when laws are certain, then we should also abolish the practice of mercy. For any act of mercy would simply lessen the certainty of punishment as enhanced by carefully crafted penal codes.

The second layer has to do with the enshrinement of constitutional values that would be legal guarantees against the abuse of power of political institutions. One guarantee is the separation of powers, recited in the Declaration of the Rights of Man and of the Citizen, the first example of constitutional codification. Montesquieu, and Beccaria, are the minds behind such formulation. When it comes to criminal law, it means that only the legislative branch has the power to promote the values of a society. It does so by appeal to the principle of utility and has an eye to the outcome of its policy. The limitation of the legislative power is therefore consequentialist, and criminal law must be the result of utilitarian calculations which should be laid out in a penal code accessible to all. The rules in the penal code are formulated in clear language and their application must be strictly followed. It follows that the limitation on the judicial power is deontological because judges should not have any power of interpretation. Beccaria creates the myth of the judge as a mechanical applicator of the law through the legal syllogism. The distrust for the judges comes from the experience of Beccaria in Italy and France, where magistrates enjoyed hereditary offices that were transmitted from father to son within a very small ruling class. Of course, the idea that they can truly be limited by strict laws has been proved to be fanciful. However, the suggestion that the functions of creation, interpretation and application of criminal laws should be separated is still very relevant.

But in the continental tradition represented by Beccaria and entrenched in the French Declaration, the power of the legislature is fettered by several substantive clauses. Not so in the case of the American Bill of Rights. Stuntz compares the two bills of rights and concludes: “The French Declaration seems almost ideally suited to limiting the power of too-powerful law enforcement agencies, and the Declaration severely limits legislatures’ ability to define crimes and specify punishments as they wish. Within the realm of criminal justice, the American Bill of Rights establishes limits that police officers and prosecutors find it easy to evade, and places nearly no restrictions at all on legislative power.”²⁵

25 William J. Stuntz. The Collapse of American Criminal Justice (Kindale Locations 982-984). Kindle Edition.

17

A third guarantee has to do with prevention and is formulated by Beccaria thus: “One cannot say that a punishment for a crime is exactly just (meaning necessary) until the law has instituted the best possible means in a given nation’s circumstances for preventing such a crime.”²⁶ Beccaria introduced the idea that the state needs to put in place all suitable substantive policies that lead to the prevention of crime. By that he means all policies that help the many to meet all the conditions of a decent life, from education to inhabitation. In short, the third guarantee is about the obligation of the state to ensure social welfare.

The fourth layer of Beccaria’s constitutional project is implied rather than explicated, but it is very much part of its ethos. The constitutional limitation of public powers should be followed by a constitutional limitation of private powers. The latter are to be more easily found in the economic and financial conglomerates that yields an enormous influence on the society without being part of the public institutions. A society that gives a blank cheque to private powers is a society that lets gross inequalities blossom amongst the people. When the many are left in a state of poverty and need, the state will have failed its mission and will have lost the justification for its right to punish.

4. ‘Diritto Penale Minimo’

Minimum Criminal Law is an apt formula to describe Beccaria’s modern impact on the philosophy of criminal law.²⁷ It refers to the specific nature of Beccaria’s social contract, which only stipulates a minimum transfer of natural freedom. As a corollary, the contract will only justify a minimum restriction on natural freedom. The principle of minimum evil is deduced from the sacrificial nature of the contract: the minimum transfer of natural freedom for the maximum gain of political freedom. That is where the principle of utility can also contribute to argue for decriminalisation and focus on prevention rather than retribution.

Because the intervention of criminal law is limited through the qualifier of necessity, the state can only use criminal law as the ultima ratio. If there are other means to prevent crimes, they should be used. This part of Beccaria’s thought is often ignored by those who consider him as the forefather or utilitarianism in England or the ancestor of law and economics in the US.²⁸ This

Commented [se2]: Please locate this in the CUP version of the book

26 XXXI, p.82

27 This expression was coined by Luigi Ferrajoli in “Diritto e Ragione.”

28 See the seminal essay by Gary Becker, “Crime and Punishment: An economic approach,” Journal of Political Economy, Vol. 76, No.2, 1968, pp. 169-217.

18

is so because Beccaria asks for the least penal intervention, and for the maximum provision of social services as part of the same package. It is criminal law that must be minimum, not the state. There is no doubt that Beccaria follows Rousseau in requesting a robust intervention of the state to redress the situation of inequality and to prevent crimes by educating and assisting people, not by repressing them.

Conclusion

Beccaria’s slim book On Crimes and Punishments is being rediscovered today. The natural question to ask is why? I suspect that his radical reformist spirit hits a deep chord with many people. Inequality is again on the rise. In most countries, criminalisation is also on the rise: criminal law attempts to micro- manage the behaviour of the many, while giving a blank check to wealthy billionaires whose tax-dodging and exploitative behaviour go unpunished. This points to a fifth constitutional guarantee against abuse of power at the supranational level that is implicit in Beccaria’s work. The rule of the few superrich must be kept in check by international law. Beccaria would stand for international legal reform to reduce global inequality and to protect international human rights law against the abuse of private and public powers. His political theory is democratic, socialist, and (implicitly) internationalist.

But even at the national level, we have reached a point where we have to re-think again the whole system of criminal justice. It is not about tinkering with what we have; it is about reforming radically criminal law to make it a law for the many and not for the few. Should we invest endless amounts of resources to criminalise all sorts of behaviour and track all minor infringements, or should the criminal justice focus its attention on grand scale criminality that undermines the welfare of the state? Beccaria’s answer would be in favour of less criminalisation and targeted at actions that undermine the public interest, in particular the interest of equality among citizens.

Beccaria denounced the inequality between the ruling class and the masses: he insisted that inequality is bound to increase the crime rate because of the criminogenic force of poverty and indignation over injustice. In turn, the increase in crime is likely to entail more social conflict and less certainty about one’s own security in the society. As a result, criminal law becomes again the law of the strong against the most vulnerable. In our societies, that are deeply polarised by inequality, Beccaria’s perceptions still ring true: we need more social justice and less criminal punishment.

19