Beccaria was deeply opposed to the death penalty, a rarity for his time when most believed capital punishment was an acceptable response to many crimes.

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Paul Meany
Intellectual History Editor, Lib​er​tar​i​an​ism​.org

Paul Meany is the Assistant Editor of Intellectual History at Lib​er​tar​i​an​ism​.org. He is interested in libertarian themes in political thought throughout ancient, medieval and early modern history.

Criminal law in the 18th century is best described as unpredictable, repressive, and punitive. Judges had immense discretion and could harshly prosecute people on the basis of flimsy evidence. Capital punishment was employed to punish a myriad of crimes, and nightmarish torture was often used to extract confessions. In England during the 18th‐​century, there were over 200 capital offences, most of them being property related crimes (theft, arson, trespassing). One of these 200 offenses was the cutting down of a cherry tree in an orchard. This changed when a previously obscure Italian philosopher named Cesare Beccaria published a short but evocative essay entitled On Crime and Punishment .

Beccaria’s Life

Beccaria was born on March 15th 1738 into an affluent,noble family. He was educated at a traditionalist Jesuit college at Parma in Northern Italy and, after graduating, he studied Law at the University of Pavia. After completing his studies, Beccaria returned home and fell in love with a woman called Teresa Di Blasco, the daughter of an army officer. Beccaria’s father forbade him from marrying her as he believed the marriage would sully Beccaria’s noble status. Beccaria protested angrily to his father, who eventually put him under what can only be described as house arrest to dissuade him from marrying Teresa. After three months elapsed, Beccaria married Teresa and became estranged from his parents.

Beccaria seemed to be entirely uninterested in scholarly affairs. The traditional methods of education failed to inspire him. However, this changed quite dramatically when Beccaria began reading Montesquieu’s Persian Letters, which recounted the travels of two Persian noblemen travelling through France. Montesquieu’s satirical and sharply critical approach to political and religious institutions inspired Beccaria to delve further into philosophy. He then met two intellectually curious brothers, Pietro and Alessandro Verri, Pietro an economist and Alessandro a writer. Pietro was the leading figure of a short‐​lived but influential? group known as the Academy of Fists. The name was jokingly adopted by Pietro when he heard the group had garnered a reputation for having such heated debates that they were reputed to break into fistfights.

The Academy was made up of Italian intellectuals who advocated for a variety of economic, legal and social reforms. They published their ideas in a periodical named Il Cafe, or “the Coffeehouse,” modelled after Joseph Addison and Richard Steele’s The Spectator. It was there that Beccaria published his first written work in 1762 on the monetary policy of Milan.

However, Beccaria found it hard to write. Pietro described Beccaria as a person with a great mind who was also lazy and easily discouraged. Pietro assigned Beccaria to write about criminal law. After some help from Alessandro, who had a wealth of experience of working with prisons, and some much‐​needed prodding from Pietro, Beccaria published On Crimes and Punishments at the tender age of twenty‐​six.

Where Does Law Come From?

A common idea in 18th‐​century thought was the concept of the state of nature, a time when there were people but no established authority to enforce rules. Many thinkers such as Thomas Hobbes, John Locke and Jean‐​Jacques Rousseau used the state of nature conceit to explain how we emerged from a primitive state into established civil society.

Thomas Hobbes believed that the state of nature was a miserable way to live. Without rules, there was pure anarchy in what he called the war against all. Eventually, the inhabitants of the state of nature, tired of lawlessness and war, surrendered their natural liberty to a sovereign endowed with unlimited powers. This sovereign would then use their power to enforce laws, bring about an end to the anarchy of the state of nature. By contrast, Beccaria wanted to stay away from theories of natural law and divine right to give a more secular account of how laws arise. To this end, the state of nature in Beccaria’s work serves not as a real event in human society but a thought experiment as to how laws would arise and function ideally.

Beccaria agreed with Hobbes’ assessment; humans left the state of nature due to the desire for security and peace. He writes that “Weary of living in a state of war, and of enjoying a freedom rendered useless by the uncertainty of its perpetuation men willingly sacrifice a part of this freedom in order to enjoy that which is left in security and tranquility.” However, unlike Hobbes Beccaria believed we did not give up all of our liberty to a sovereign. No one gives up their liberty for the benefit of another, but, as Beccaria writes, “ Every man thinks of himself as the centre of all the world’s affairs.” We only surrender the smallest portion of our liberty in order to preserve peace.

Beccaria defines laws as “the conditions whereby free and independent men unite to form society.” From this definition Beccaria reached two conclusions. Firstly, the law must bind all equally, as the obligation to obey the law “reaches from the throne to the hovel” and is equally binding for “the greatest and most wretched of men.” Secondly, laws are only justified as long as they maximise the amount of individual liberty possible. Beccaria’s conclusions are deeply egalitarian and liberal as he believes no one should be above the law and that we ought to be allowed to pursue our rational interests as long as we do not interfere with or harm others.

Deterrence is Better than Punishment

If a person commits a crime, how should we punish them? Beccaria believes that punishment functions mainly as a deterrence to dissuade future criminals from breaking the law. Retributive punishments which focus on the suffering of a criminal are a waste of time; as Beccaria asks “Can the wailings of a wretch undo what has been done and turn back the clock?” Instead, punishment serves “to prevent the offender from doing fresh harm and to deter others from doing likewise.”

Beccaria subscribed to Locke’s idea of empiricism, the idea that all of our knowledge comes through the senses alone. He believed that if punishments were speedy and certain then people would associate the crime with the sentence more clearly and avoid breaking the law. Therefore Beccaria argues that crimes “are more effectually prevented by the certainty, than the severity of the punishment.” Citing Montesquieu, Beccaria states “every punishment, which does not arise from absolute necessity… is tyrannical.” Punishment is first and foremost about stopping current criminals from causing harm and deterring future criminals.

Beccaria believed that “it is better to prevent crimes, than to punish them,” but besides punishing criminals to deter others, how does Beccaria believe we can prevent crimes? Firstly, he believes that laws should be written in a manner which is understandable to the average person. Beccaria exclaims, “It is the greatest of evils if the laws be written in a language which is not understood by the people.” Laws should be clear, simple, and applied equally to all so there is no ambiguity or uncertainty. Lastly, Beccaria argued that “the surest but hardest way to prevent crime is to improve education.”

His Opposition to the Death Penalty

Beccaria was deeply opposed to the death penalty, a rarity for his time when most believed capital punishment was an acceptable response to many crimes. He was not the first to oppose the death penalty–he 12th‐​century Jewish philosopher Maimonides had opposed the death penalty because “it is better and more satisfactory to acquit a thousand guilty persons than to put a single innocent one to death”– but Beccaria was the first to provide a sustained critique of the death penalty.

Firstly, Beccaria opposes the death penalty on moral grounds. Laws are made legitimate by people’s consent; however, Beccaria believed no man would rationally sacrifice his right to life. He asks “Who has ever willingly given other men the authority to kill him?” The minimum sacrifice of liberty people made to emerge from the state of nature did not include “the greatest good of all, life.” There are certain cases where the death penalty is acceptable when the state is in grave danger; however, for most cases detainment is the preferable option. Beccaria concludes that unless there are grave circumstances, the state has no right to put its citizens to death. He stresses further that “the death penalty is not a right, but war of a nation against a citizen.”

Secondly, he argues on practical grounds that the death penalty is not effective as a deterrent. Executions in Beccaria’s day were public affairs. Those who disagreed with Beccaria might well have asked whether the image of a man being beheaded or hung would stick in our minds and make us fear breaking the law? But Beccaria believes it will not as the execution‐​only lasts a moment. The passing spectacle of execution leaves no real impression in our minds. For the most part executions in the past were not solemn contemplative affairs, most thought of them as entertainment.

The death penalty has existed throughout history. The Athenian Lawgiver of the 7th century Draco made death the penalty for most offences. When asked why, he explained, “The lesser ones deserved it, and for the greater ones no heavier penalty could be found.” However, people still committed crimes despite the harshness of the punishment. The death penalty is ubiquitous throughout history, but as Beccaria points out “the ultimate punishment has never deterred men determined to harm society.” In fact, the times when the most draconian punishments are implemented is when crime is most common. He believes that by responding to savagery with state‐​sanctioned savagery, it harms the general humaneness of civil society “because of the example of savagery it gives to men.” Overall Beccaria believed that the state had little legitimacy in pursuing capital punishment and that, moral considerations aside, it wasn’t even a particularly useful policy.

Against Torture

Torture was a common practice in the 18th century. Beccaria believed that torture “is a standing monument to the law of ancient and savage times.” His opposition to torture is threefold. Firstly, torture undermines the rationality of the justice system. The use of torture replaces evidence with pain as the method of establishing the truth. Secondly, torturing someone to make them confess to the crime yet again undermines the justice system as “no man can be considered guilty before the judge has reached a verdict.” Thirdly, even if torture was only used on actual criminals, it is unnecessary and extreme, as stated by Beccaria, “Every act of authority between one man and another that does not derive from absolute necessity is tyrannical.” Torture is excessive and only serves to torment criminals, not to deter future offenders.

Gun Control in the 18th‐​Century

Beccaria stresses the importance of deterring crime. Today, many proponents of gun control believe the laws they pass will deter criminals. Beccaria strongly disagrees. In a chapter entitled “False Ideas of Utility,” Beccaria makes many surprisingly modern‐​sounding arguments against laws restricting ownership and access to firearms. He believes that laws restricting firearms “only disarm those who are neither inclined nor determined to commit crimes.” If a person is going to murder someone, surely they will have no qualms illegally circumventing any regulatory laws, which Beccaria argues are “the most trifling and purely arbitrary regulations that can be broken with ease and impunity.” These laws are not only ineffective at deterring criminals, Beccaria notes that they also “place the assaulted at a disadvantage and the assailant at an advantage.” Furthermore, they “subject the innocent man to all the annoyances which the guilty deserve.”

The Legacy of His Work

Beccaria published On Crimes and Punishments anonymously as he was afraid that his radical views could get him into trouble with the authorities. In some ways, Beccaria was right to do so. His book was added to the Index of Forbidden Books by the Catholic Church in 1766 and was only removed nearly two hundred years later in 1962. Immanuel Kant, who believed that all murderers should be executed, called Beccaria’s arguments “sophistry.” Long after his death, Beccaria was even called a socialist for his apparently utopian views.

There were many critics of Beccaria, but there were also many admirers. Convinced and inspired by Beccaria, Grand Duke Leopold of Tuscany and the Holy Roman Emperor Joseph II in Austria abolished the death penalty in 1786 and 1787. Empress Catherine the Great wished to abolish the death penalty and offered to hire Beccaria to reform the legal system of Russia; however, he preferred to stay in Milan. Beccaria, along with Montesquieu, inspired the 1791 penal code in France, which abolished the arbitrary crimes and trials of the pre‐​Revolutionary Ancien Regime.

Today in America, Beccaria is by no means a household name; however, in the 18th‐​century he was wildly popular. When two scholars, Donald Lutz and Charles Hyneman, analyzed 15,000 sources written during the period of 1760–1805, they found that Beccaria was the seventh most quoted author, ranking alongside people such as John Locke, David Hume, and Montesquieu. Thomas Jefferson and Benjamin Franklin, who were both fans of Beccaria’s work, advocated for limiting the death penalty to treason and murder, while Benjamin Rush argued for incarceration as opposed to execution, all inspired by Beccaria. Thomas Jefferson even referenced him numerous times in draft legislation to reform Virginia’s penal laws.

The legal systems of Beccaria’s day were for the most part bound by custom and thus based upon personal discretion and hereditary rights. This resulted in laws being applied unequally as well as punishments that were often deeply disproportionate to the crime. Beccaria wished to modernise criminal law by making it a system of rational rules and principles, for which, his friends nicknamed him Newtocino, Little Newton.

But Beccaria’s rationalism was not cold‐​hearted, he wished for a system which treated all people equally and fairly, regardless of their class or station in society. In that regard Beccaria was successful, his work having inspired many reformers throughout the Enlightenment. However, even today we have disturbing problems in our justice system. Most prosecutions never see juries, ending instead in plea bargaining. Many people are locked up for victimless crimes. The police disproportionately target minorities, applying the law harshly for some and leniently for others. In this regard, despite being over 250 years old, On Crimes and Punishments is still relevant to this day.