Beccaria Modernized Criminal Law

Beccaria believed that the state had little, if any, moral legitimacy pursuing capital punishment.

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Summary:

Before the 18th-century, European criminal law was unpredictable, repressive, and punitive. Judges had an abundance of discretionary power, and harsh punishments were doled out inconsistently. Cesare Beccaria, in his famous essay On Crimes and Punishment articulated a system of law based upon deterring crimes and using punishment only when it was necessary to detain current criminals and deter future offenders. To this end, he was against the death penalty, which he believed was counter-productive and barbaric. Following its publication in 1764, On Crimes and Punishments became not only popular reading, but also a catalyst for reform in Europe, Russia, and America.

Further Reading:

Cesare Beccaria Was a Trail Blazer on Capital Punishment, written by Paul Meany

Self-Interest and Social Order in Classical Liberalism: Thomas Hobbes, written by george Smith

Cesare Bonesana di Beccaria, An Essay on Crimes and Punishments [1764]

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00:05 Paul Meany: Criminal law in the 18th century was unpredictable, repressive and punitive. Judges had near unlimited discretion and could harshly prosecute people on the basis of flimsy evidence. Capital punishment was often employed to punish minor crimes and nightmarish torture was used to extract false confessions. If you don’t believe me, look at England in the 18th century. In an attempt to reduce crime, over 200 capital offenses were instituted, most of them being for property-related crimes such as theft, arson and trespassing. An example of these 200 offenses was the cutting down of a cherry tree in an orchard. Imagine being executed for cutting down a tree. Even if no one was ever executed for this reason, it shows us how ad hoc and arbitrary laws were.

00:46 Paul Meany: This all began to change when a previously obscure Italian thinker named Cesare Beccaria published a short but evocative essay entitled On Crimes and Punishments. Beccaria was born on the 15th of March 1738 into a wealthy, noble family. He was educated at Jesuit college of Parma in Northern Italy, which had a very traditional scholastic curriculum. After graduating Beccaria then went on to study law at the University Of Pavia. After completing his studies in law, Beccaria returned home and fell in love with a woman named Teresa di Blasco, the daughter of an army officer. Beccaria’s father forbade him from marrying her, as he believed the marriage would sully his 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.

01:33 Paul Meany: Beccaria seemed to be entirely uninterested in scholarly affairs. The traditional methods of education failed to inspire him. However, Beccaria’s outlook dramatically changed when he began reading Montesquieu’s Persian Letters, which recounted the fictional travels of two Persian noblemen traveling through France. Montesquieu’s satirical and sharply critical approach to political and religious institutions inspired Beccaria to delve further into philosophy in order to critique outdated traditions.

01:58 Paul Meany: He then met two intellectually curious brothers, Pietro and Alessandro Verri. Pietro was an economist and Alessandro was a writer. Pietro was the leading figure of an influential group of intellectuals known as the Academy of Fists. The name was jokingly adopted by Pietro when he heard that the group had garnered a reputation for having such heated debates that they were reputed to break out 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 Caffè or The Coffee House. It was modelled after Joseph Addison and Richard Steele’s The Spectator in England. It was there that Beccaria published his first written work in 1762 on the monetary policy of Milan.

02:38 Paul Meany: However, Beccaria found it hard to write. Beccaria was described by Pietro Verri as, “Very bright but also quite lazy and easily discouraged by difficult tasks.” Pietro then assigned Beccaria to write about criminal law. Alessandro Verri, who had a wealth of experience working with prisons, aided Beccaria. Pietro provided some much needed discipline for the young Beccaria, hounding him to finish his work constantly. Beccaria then finally published On Crimes and Punishments at the tender age of 26, a work that would change the landscape of law throughout Europe in the 18th century and beyond.

03:09 Paul Meany: In 17th and 18th century political thought, many writers discussed the concept of a state of nature, a time when there were people but no established authority to enforce rules or laws. Figures such as Thomas Hobbs, John Locke and Jean-Jacques Rousseau used the state of nature to explain how we emerged from primitive state into established civil society. Beccaria wanted to stay away from theories of natural law and divine right in order to give what he believed was 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, but as a thought experiment on how laws would ideally arise and function.

03:40 Paul Meany: Thomas Hobbes believed that the state of nature was a miserable time to live in. Without rules there was pure anarchy and what can only be described as the war of all against all. The inhabitants of the state of nature would quickly grow tired of lawlessness and war. They decided to surrender their natural liberty to a leader or sovereign endowed with unlimited powers. This sovereign would then use their power to enforce laws and bring about an end to the anarchy of the state of nature.

04:03 Paul Meany: Beccaria agreed with Hobbes’ assessment. Humans left the state of nature due to their desire for security and peace due to constant conflict. Being sick and tired of all the misery and torment of war, people sacrificed part of their freedom in order to enjoy the freedom that they had left. However, unlike Hobbes, Beccaria believed we did not give up all of our freedom. No one wants to give up their freedom for the benefit of another. For Beccaria every man thinks of himself as the center of the world’s affairs. Beccaria’s great departure from Hobbes is that when we leave the state of nature, we sacrifice as little liberty as possible in order to live in peace and harmony.

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04:36 Paul Meany: Beccaria came to two important conclusions about the fundamental nature of law. Firstly, the law must be applied to all equally. Beccaria explained that the obligation to obey the law was one that reaches from the throne to the hovel. It is equally binding to the greatest and most wretched of men. Secondly, laws are only legitimate when they maximize the amount of individual liberty possible. But what happens when a person breaks the law? What do we do then? If a person commits a crime, how should we punish them? As the title, On Crimes and Punishments, suggests, this makes up the bulk of Beccaria’s essay.

05:10 Paul Meany: He believes that punishment functions mainly as a deterrence to discourage future criminals from breaking the law. Retributive punishments, which focus on the suffering of a criminal, are a waste of time according to Beccaria. Can the wailings of a wretch undo what has been done and turn back the clock? The answer is no. Inflicting suffering upon others does not help anyone. 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.

05:41 Paul Meany: A well read man, Beccaria subscribed to Locke’s idea of empiricism. This is the idea that all of our knowledge comes through our senses alone. We are not born with in-built or innate ideas. Instead, our lives are wholly dictated by experience and education. Beccaria believed that if punishments were speedy and certain, then people would associate the crime with the sentence more clearly and therefore, would avoid breaking the law in the first place due to the psychological association of crime with punishment. The severity of punishment is secondary, what is more important is the certainty of it.

06:10 Paul Meany: Beccaria believed that it is better to prevent crimes than to punish them, but how do we prevent crimes? He answers firstly that law should be written in a manner which is understandable to the average person. Law should be clear, simple, applied equally to all so there’s no ambiguity or uncertainty. Secondly, Beccaria argued that the surest but hardest way to prevent crime is to improve education. Famously, Beccaria was deeply opposed to the death penalty. This was a rarity at a time when most believed capital punishment was an acceptable response to many crimes. However, he was not the first to oppose the death penalty by far. In the 12th century, the Jewish philosopher Maimonides had opposed the death penalty because, in his words, “It is better and more satisfactory to acquit a thousand guilty persons than to put a single innocent one to death.” However, Beccaria was the first person to put forth a sustained and an extensive criticism of the death penalty.

07:00 Paul Meany: He attacks it on both moral and practical grounds. First up, we have the moral argument. Laws are made legitimate by people’s consent. However, Beccaria believed no man would rationally sacrifice his right to life. Who in their right mind would ever give people the right to kill them? Unlike Hobbes’ state of nature, for Beccaria we only make the minimum sacrifice of liberty possible in order to live in peace. This minimum sacrifice could not possibly include, what he calls, the greatest good of all: Our lives. Beccaria admits that there are certain cases where the death penalty is permissible, such as if the state is in grave danger. However, by and large, in 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 emphatically states that the death penalty is not a right but a war of a nation against a citizen.

07:49 Paul Meany: Secondly, we have the practical argument. The death penalty is not effective. It does not successfully deter future criminals. Executions in Beccaria’s day were public affairs and were held often. Remember the empiricism of Locke? The trick was not to torture or horrifically punish people in public, but instead to leave a lasting psychological link between crime and punishment. Only when people believe crime will certainly result in punishment, will they be deterred. An execution only lasts for a brief moment. The passing spectacle of execution leaves no real impression on the audience’s mind. For the most part, executions were thought of as entertainment, not solemn and contemplative affairs.

08:25 Paul Meany: But Beccaria goes even further than this and makes a historical case against the death penalty. The death penalty has always existed, but the societies that have been most willing to kill criminals tend to have the most criminals. An illustrative case is seventh century Athens.

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08:39 Paul Meany: The Athenian lawmaker, Draco, made death the penalty for most crimes. When asked why, he supposedly replied, “The lesser ones deserved it and for the greater ones, no heavier penalty could be found.” However, surprise, surprise. People still committed crimes despite the harshest of punishment. The death penalty is ubiquitous throughout history but the ultimate punishment has never deterred men determined to harm society. In fact, the times when the harshest punishments are implemented, is when crime is most common. Responding to savagery with state sanctioned savagery only serves to create a barbaric society. Examples of savagery harm the general humaneness of civil society.

09:19 Paul Meany: Beccaria believed that the state had little, if any, moral legitimacy pursuing capital punishment and that even if we cast moral considerations aside, it wasn’t even a particularly useful or effective policy. Similar to the death penalty, torture was also a common practice in the 18th century. Beccaria saw no function or purpose for torture in a modern, enlightened society. He believed that in his day, torture acted as a standing monument to the law of ancient and savage times.

09:45 Paul Meany: His arguments against torture are three-fold. Firstly, torture undermines the rationality of the justice system. The use of torture replaces evidence with how much pain a person can endure as a method of establishing truth. Secondly, torturing someone to make them confess to a crime yet again undermines the justice system. No one can be judged as guilty or be punished before an official sentence has been passed. Torture therefore makes the justice system moot and illegitimate. Thirdly, even if torture was only used on criminals, it is over the top and extreme. Beccaria states: An important maxim of both criminal punishment and politics is that every act of authority between one man and another that does not derive from absolute necessity, is tyrannical. Torture is not necessary when somebody has already been detained. Therefore it is tyrannical.

10:32 Paul Meany: As we’ve already seen, Beccaria stresses the importance of deterring crime. In America today, many proponents of gun control believe that the laws they will pass will deter criminals from using firearms. Beccaria developed this argument in a chapter entitled False Ideas of Utility. For Beccaria, laws restricting firearms only disarm those who are neither inclined nor determined to commit crimes. If a criminal is going to murder someone, surely they will have no scruples illegally circumventing any regulatory laws on gun ownership. If a person is willing to kill, they won’t be scared off by their breaking minor laws along the way. Beccaria believe that laws which restrict firearm ownership of his day 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 make it easier for criminals to attack individuals who can no longer arm themselves. Beccaria concludes that laws restricting firearm ownership subject the innocent man to all the annoyances which the guilty deserve.

11:26 Paul Meany: At first, Beccaria published On Crimes and Punishments anonymously. He was afraid that his then radical views would get him into trouble with the authorities. 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 200 years later in 1962. Long after his death, Beccaria is even called a socialist for his apparently utopian reforms.

11:49 Paul Meany: While there were many critics of Beccaria, there were also many admirers. Voltaire’s commentary on Beccaria’s work brought him to attention of many French intellectuals. Inspired by Beccaria, Grand Duke Leopold of Tuscany and the Holy Emperor Joseph II in Austria greatly limited the use of the death penalty in 1786 and 1787. Empress Catherine the Great of Russia wished to abolish the death penalty, and even offered to hire Beccaria to reform the legal system of Russia. However, he preferred to stay at Milan. Empress Catherine, in 1767, wrote a lengthy document, which was to be reviewed by a commission. Much of the document was selected quotations from various philosophers. Of the 655 clauses, 108 come from Beccaria’s short On Crimes and Punishments. The monarch of Prussia, Frederick the Great, abolished most uses of torture in the judicial system. He attributed this decision to Beccaria’s writing. He said that we need only follow what he has so wisely indicated. Beccaria, along with Montesquieu, inspired the 1791 penal code in France, which abolished the arbitrary crimes and trials of pre-revolutionary Ancien Régime. In England, legal reformers such as Jeremy Bentham enthusiastically read his writings.

12:50 Paul Meany: But Beccaria’s influence even went beyond Europe. Today in America, Beccaria is an obscure figure. 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 to 1805, they found that Beccaria was the 7th most quoted author, ranking alongside intellectual giants such as John Locke, David Hume and Montesquieu. Thomas Jefferson and Benjamin Franklin were both avid fans of Beccaria’s work. They both advocated for limiting the death penalty to crimes of treason and murder. Thomas Jefferson even referenced Beccaria numerous times in the draft legislation to reform Virginia’s penal laws.

13:29 Paul Meany: Beccaria also wrote on economics, but none his later works would ever match the astronomical level of success On Crimes and Punishments reached. Beccaria was also an extremely shy, nervous and reserved man. On top of his introverted personality, he was wholly dedicated to his wife and loathed the prospect of leaving her alone. When the Verri brothers convinced him to travel to Paris, the intellectual and philosophical capital of Europe, he cut short his trip. He wrote to Alessandro Verri, “Remember I love you tenderly. That I prefer my dear wife, my children, my friends and Milan and chiefly you, to the whole of Paris.” After this ordeal, Beccaria never left Milan again. His career as an intellectual was stunted by his reserved nature and his deep attachment to his home.

14:11 Paul Meany: However, Beccaria still went on to do great things. He spent a lot of his life working towards reform in his beloved Milan. In 1768, he gained a position in the Palatine College teaching law and economics. After this, in 1771, Beccaria was admitted to the Supreme Economic Council. By 1791, he was a member of the Board of Reform of Judicial Code. He eventually passed away in 1794, after leaving a huge impression upon the world.

14:34 Paul Meany: The legal system of Beccaria’s day were 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 oftenly deeply disproportionate to the crime. Beccaria wished to modernize criminal law by making it a system of rational, predictable rules and principles. Because of this, his friends nicknamed him Newtoncino, Little Newton.

14:58 Paul Meany: 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 lenient for others. In this regard, despite being over 250 years old, On Crimes and Punishments is still deeply relevant to this day.

15:35 Paul Meany: Thanks a mil for listening. I hope you enjoyed this podcast and if you did, you can subscribe on Apple Podcasts, Spotify and wherever else you may listen to podcasts. Visit the website www.libertarianism.org to find more podcasts like this one. I hope to see you next time.