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.
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.
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.” 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.
B. 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, the more sacred and inviolable is the security and the greater the freedom which the sovereign preserves for his subjects.
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.
- 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.
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.
C. 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.”
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.
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 William J. Stuntz. The Collapse of American Criminal Justice (Kindale Locations 982-984). Kindle Edition.
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.” 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.
D. ‘Diritto Penale Minimo’
Minimum Criminal Law is an apt formula to describe Beccaria’s modern impact on the philosophy of criminal law. 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.
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.
This is 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.
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