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.

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.’

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.

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 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 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 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.