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.

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.”

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.

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.