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.

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.” 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 ‘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.”

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 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.”

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

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.