Cesare Beccaria (1738-1794), a Milanese aristocrat, is considered the main representative of penal illuminism and the Classical School of Criminal Law. Imbued with Enlightenment values and ideals, he became known for challenging the sad condition of the punitive sphere of law in despotic Europe – without, however, challenging the prevailing social order as a whole. His works, more specifically the one entitled “On Crime and Punishment”, are considered the basis of modern criminal law. The propositions therein architecturally designed modern politics and law: equality before the law, abolition of the death penalty, eradication of torture as a means of obtaining evidence, establishment of public and rapid trials, consistent and proportional penalties, among other criticisms and proposals aimed at humanizing law. In this way, Beccaria rethought the law and punishment based on a philosophical, moral and economic analysis of the nature of the human being and the social order.
He is then associated with the “Classical School of Criminology”, but here it is worth making some reservations about this denomination. First, the concept of criminology as a discipline focused on the systematic study of crime appears only a century after Beccaria”s death. Therefore, this denomination is anachronistic. Furthermore, there was not a properly established school that stuck to a consistent set of ideas. Thus, in the case of Beccaria, it would be less erroneous to speak of a “School of Criminal Sciences” as a loose agglomeration of thinkers gathered on more or less common theoretical bases, which include not only criminology, but also public policies, criminal law and criminal execution.
With these caveats, it can be said that Beccaria understood the social phenomenon of crime through the lens of rationality: the subject makes a rational calculation whose product, that is, his choice, is crime. In other words, it is the product of a rationally calculated choice whose fruit is irrationality – crime is the wrong rational choice.
From this assumption, the classical thinker asks himself how it would be possible to prevent it. Consistently, prevention is given by the role of laws and penalties to directly influence the individual”s decision-making process, in the sense of discouraging him, of making him “think twice”. Therefore, the law must be previous, written and publicized so that the subject knows it and, consequently, so that it discourages his irrational attitude – he will know that he will have to serve time. Nevertheless, for this reasoning to be consolidated, it is essential that, at the time of the application of the penalty, the process be public – making it possible to verify its effectiveness – and swift – since the firm association in people”s minds between crime and punishment depends on a short period of time between this cause and its consequence.
This way of thinking about criminology was extremely important for the development of a more humanized criminal law based on legal security; however, this conception has been overcome: increasing penalties to intimidate more people in order to reduce the incidence of crime proved ineffective.
To properly understand the emergence and importance of Beccaria”s work, one must keep in mind the particular context and milieu in which the author was inserted. On the one hand, he lived under a despotic government, in which the population was submitted to the totalitarian powers of the Church and the Prince. On the other, the 18th century was the height of the great transformations that took place in Europe: there was enormous cultural upheaval, the spread of the Enlightenment ideals, literary and philosophical legacies of humanism, the spread of philosophical rationalism, of jusnaturalist, contractualist, and utilitarian theories. In short, the conflicts between reason and spirit gave rise to multiple philosophical variations that challenged the prevailing social order.
Then, from the ideas of Montesquieu and Denis Diderot, arises the figure of enlightened despotism: for men to be happy, society must be organized in such a way that natural laws (derived solely from the constitution of being) are observed. In this way, rulers were chosen by society to guarantee such rights with the powers granted to them. Along this path, the Habsburg Dynasty implemented reforms in Italy, and the Enlightenment philosophers adhered to this modernizing project of the Austrian Crown. Thus, Beccaria”s proposals, besides their humanitarian inspiration, contesting the arbitrariness that the social order allowed, were motivated by the intention of making the criminal system more efficient, considering that the political project of absolutism in the 18th century also had in mind the modernization and economic strengthening of the region. Therefore, by reconciling the social dirigisme of the utilitarian theory (Helvetius) with the image of the legislator king, Beccaria”s work conceived a penal model constituted by efficient methods of social intervention, enabling the monarch to direct society. In other words, in Beccaria”s work, humanitarian issues accompany issues of another order, since the utilitarian theory had the role of providing the sovereign with methods for the subordination of civil society, which implies a relative disregard of the subject”s autonomy.
As already mentioned, Cesare Beccaria was strongly influenced by several thinkers – mainly French-speaking, given the great influence of French culture at the time. Among them are Denis Diderot (L”Esprit) and Montesquieu (Lettres Persanes), Jean-Jacques Rousseau (Social Contract), Helvetius, Thomas Hobbes, Condillac, Francis Bacon, and others. Beccaria himself attributed special importance to Montesquieu when he wrote to the abbot Morellet in 1766: “The time of my conversion to philosophy dates back five years, and I owe it to the reading of the Persian Letters.
Notwithstanding all this theoretical influence, the works attributed to Beccaria would most likely not exist without the Accademia dei Pugni, a contributor to the newspaper Il Caffè. Much of the content of “On Crime and Punishment”, as well as the stimulus to write it, came from the brothers Pierro and Alessandro Verri, important members of that academy. In a letter from Pierro to Alessandro, in 1780, he says: “Beccaria wrote the book and anyone who knows the style will understand that it is not mine; however, I could say in truth that this book would not have been published and written without me, because a good part of the ideas were developed by you and me, a good part concerning torture was extracted from my observations, which I had written and which I recast in a speech on the evil “uciones” and in the apologia (answers given to Fachinei) the author only took part in harassing us at work”.
The brothers Verri and Beccaria introduced in criminal law the new conceptions of the Enlightenment matrix, their thoughts, criticisms and propositions being concentrated in the treatise Dei delitti e delle pene (it was widely read in Europe and in the USA, influencing the organization of their judicial systems and legal processes – for example, it served as a basis for judicial reform in Lombardy, and several of its principles were incorporated into the US constitution. It also influenced subsequent thinkers, such as Jeremy Bentham. Among his supporters at the time was the philosopher Voltaire who, in a commentary on the work of the Italian nobleman (1766), stated: “Beccaria rejects all ideas of expiation, of divine vengeance, in order to limit the function of punishment to social utility. He aspires to moderate, certain, swift punishments; he prefers prevention to repression. He advocates equality and legality of offenses and penalties. Finally, as far as the death penalty is concerned, he is the first of the abolitionists, even though he foresees two exceptions to the principle of abolition.
Cesare Bonesana, Marquis of Beccaria, was born on March 15, 1738 in the city of Milan, Lombardy, which at the time was under Austrian rule. Both his father, Giovanni Severio Beccaria Bonesana, and his mother, Maria Vistonti, were members of the aristocracy.
The relationship with his father, whose authority he challenged in 1761 by marrying Teresa di Blasco, a woman condemned to belong to a lower social class than his own, was difficult. Such a disagreement made Beccaria”s financial conditions very precarious at the time. The couple had two daughters, Maria and Giulia. The latter married Pietro Manzoni, with whom he would later have Alessandro Manzoni, author of “The Bridegrooms. After the death of his first wife, in 1774, Beccaria married, in the same year, Ana da Casa dos Condes Barnaba Barbo, with whom he had Giulio Beccaria.
In his basic education, Beccaria studied at the Jesuit School of Parma and later graduated in Law from the University of Pavia in 1758.
The years under the tutelage of the Jesuits in Parma were, in his view, useless. With an educational model characterized by the thinker himself as “fanatical”, Beccaria rebelled against the authoritarian teaching methods, criticizing the inflexible and dogmatic attitude of his professors, which ended up making the learning process, in his view, discouraging and uninspiring. The subjects considered essential for the education of an aristocrat, therefore, aroused no enthusiasm in Beccaria.
Some critics believe that all these years created in this young and frustrated man lethargy and discontentment, at the same time playing an important role in the elaboration of his work on penal reform. In the same sense, it is also believed that the difficult relationship established with his father contributed to his critical stance against the aristocratic ideals and privileges that marked the period in which he lived.
“L”Accademia dei Pugni and the Influence of the Verri Brothers
Upon graduation, Beccaria returned to Milan and began to develop an interest in philosophical works, such as Montesquieu”s Lettres persanes – a satire of political and religious institutions that aroused in him an interest in this type of discussion. With this, Beccaria began to read more philosophical works, especially those of the French encyclopedists. Besides philosophy, literature also came to his attention.
His interest in penalogy and crime, however, was sparked from his contact and association with the brothers Pietro and Alessandro Verri, which also took place when Beccaria was about 20 years old. Alessandro was a creative writer. Pietro was a distinguished Italian economist who had studied in depth the works of British political and economic thinkers as well as French philosophers. With this mastery of knowledge, Pietro dedicated himself to disseminating it, along with the ideals of the European Enlightenment, in the Lombardy region, harnessing them to build a project of social, political, economic, and legal reform. The brothers managed to gather a group of young people interested in the study and discussion of philosophical and literary subjects, a group known as L”Accademia dei Pugni – the Academy of Fists – of which Beccaria was a member.
The group met at the Verri house and it was in this group that Beccaria found encouragement that later resulted in his work on penal reform. The atmosphere created with these intellectual discussions, accompanied by studies of various social problems of the time, awakened in Beccaria an intense desire to question various aspects of 18th century society. Targets of this attack were the economic disorder, the closed and conservative religious thinking, the bureaucratic tyranny and the tiresome intellectual . It was also at the Academy of Fists that Beccaria became familiar with the works of Thomas Hobbes, David Hume, Denis Diderot, Claude Adrien Helvétius, and Charles-Louis de Secondat (better known as Montesquieu).
An example of this group”s engagement was the fight for the liberation of Milan from the dominion of Charles VI of Austria, fighting the institutions that then administered the duchy. The dissemination of ideas was made through the periodical Il Caffè – of which Beccaria was a contributor between 1764 and 1766. The name of this periodical is related to the fact that coffee consumption was for a long time repudiated, especially by the Catholic Church, which saw it as an impure and Mohammedan product.
On Crime and Punishment (1764)
The first work published by Beccaria was Del disordine e de” rimedi delle monete nello stato di Milano nell” anno 1764, in the year 1764. This monograph, nowadays very important, discussed the first humanitarian rights. In his work, he criticizes some of the state”s punitive methods, such as the death penalty and the use of torture as a means to obtain confessions and accusatory evidence. With this work, Beccaria was persecuted by many politicians and jurists, but his work was very influential throughout the world, even in the Brazilian constitution and in the Penal Code itself.
Although he developed an interest in discussing philosophy, literature, and the issues and problems of his time, Beccaria never had an extreme eagerness for writing. Quite the contrary, as Pietro Verri had stated, Beccaria was at times lazy and lacking motivation. It was not uncommon for tasks to be assigned to him to get work done. And it was one of these tasks that eventually culminated in the work that gives him, even today, great recognition: On Crime and Punishment (in Italian: Dei Delitti e Delle Pene).
It is speculated that when Beccaria had to face the elaboration of the work that would give rise to this work, he knew nothing about penalogy. It was Alessandro Verri who, as Protector of Prisoners, was able to give Beccaria the necessary help and suggestions.
Criminal law in 18th century Europe was, in general, repressive, uncertain and barbaric, allowing arbitrary, abusive and often corrupt practices. The deprivation of liberty, life and property did not take place according to what we now call due process of law. Secret accusations were admitted and convictions were made on the basis of inconsistent evidence.
The judges” discretion as to how to punish those convicted of crimes was unlimited, and sentences varied according to their will or the social class of the individual.
Death sentences were common, preceded by inhumane atrocities on the condemned, and no distinction was made in practice between the accused and the condemned – both were placed in the same institution and were subject to the same horrors of incarceration, regardless of age or sex.
It is against this system of criminal law – its cruelties, irrationality and abuses – that the work must be analyzed. In this way, it is possible to recognize its innovative, humanitarian, and revolutionary character, insofar as it sets out to write social political observations on the problems of this criminal law.
Of Offenses and Punishments began in March 1763 and the manuscript was completed in January 1764. It was first published anonymously in July 1764, when Beccaria was 26 years old. Only when the book was accepted by the authorities did Beccaria attach his name to it.
The work was an immediate success and had great recognition by those who read it. However, many disagreed with what was stated in the work. The fact that it was published anonymously indicates that the ideas in it went against many of the beliefs of those who determined the fate of those accused and convicted of crimes. Thus, as an attack on the dominant system of criminal justice administration, the work aroused hostility and resistance from the beneficiaries and defenders of the archaic and barbaric institutions designed for punishment.
The Trip to Paris
In 1766, Voltaire and other French encyclopedists, impressed by the concepts expounded in On Crime and Punishment, asked Beccaria to travel to France to discuss ideas. The Italian then visited the city of Paris that same year. Pietro Verri accompanied him on this trip, which lasted only two months because Beccaria missed the peaceful environment of Lombardy.
Although the work assumes a bold and uninhibited personality, Beccaria was shy, observant, and withdrawn. It was after this trip to Paris that there was a disagreement between Beccaria and the Verri brothers over allegations of misappropriation of ideas. This argument over the authorship of the work exists to this day. It is clear that Beccaria was pushed to undertake the study by the Verri and other members of the Academy and that their discussions and advice played a key role in the consolidation of the work. It is understood that the manuscript was edited prior to publication by Pietro Verri, in which he reordered the text, removed some parts and added others. Despite this controversy, it is now widely accepted that Beccaria can be considered the primary author of On Crime and Punishment.
In 1768, Beccaria took the chair of Political Economy at the Palatine School in Milan, a position he held for only two years. The institution trained individuals destined for government service. Through the classes, he continued to transmit his ideas, which were responsible for influencing judicial and other reforms in Lombardy. These lectures were collected and published in 1804, ten years after his death, and are considered his second major published work.
Catherine II, Russian empress between 1762 and 1796, invited Beccaria to teach in the Russian Empire.
In 1771, Beccaria was appointed adviser to the Supreme Council of Economics, at which Pietro Verri was president. He was a member of this Council for more than twenty years.
Not only the circulation of his work, but also the fact that he taught individuals who would go on to hold positions in government, meant that his ideas generated reforms in the Lombardy region. These effects, however, were also felt in several other regions, as his work was widely read and respected in many different places – a factor that made his ideas play a significant role in the organization of judicial systems and in the structuring of the legal process.
Under the influence of Beccaria”s work, Empress Maria Theresa of Austria abolished torture in 1776. Voltaire, in turn, called Beccaria”s book a true code of humanity. Empress Catherine II of the Russian Empire ordered the book”s concepts to be included in the 1776 Criminal Code. In 1786, Leopold of Tuscany issued the first law adopting Beccaria”s reforms in what is now Italy. In the Kingdom of Prussia, there were also reforms along these lines, carried out by Frederick the Great.
Cesare Beccaria died of apoplexy on November 28, 1794, at the age of 56. He was buried in the Cimitero della Mojazza.
It is in the work On Crime and Punishment that we can find what is recognized as Cesare Beccaria”s contribution and theory regarding Criminal Law. Despite the controversy over the authorship of the work (as explained in the item Journey to Paris), today it is widely accepted that Beccaria is the author. It is to him, therefore, that credit for the innovations and insights present in the work is given.
In the opening warning of his work, Beccaria summarizes his thoughts and indicates the reason that led him to write the book: caution regarding religion and constituted power. Thus, he makes suggestions for the elaboration of new codes. Through his work, he intends to humanize the law, especially criminal law and the execution of sentences, which were left to the discretion of the monarch and the judge. In this sense, he opposed the cruelty of penalties and the irregularity of criminal procedures and revolted against atrocities committed in the name of law, justice and public order.
The author is greatly influenced by Montesquieu, with his book “The Spirit of the Laws”, and Rousseau, with his work “The Social Contract”. The latter, in particular, contains the basic principles of Beccaria”s book, as it deals with the social pact that involves the total alienation of each member”s rights in favor of the community. The result is a moral and collective body driven by the law, which would be the collective and general will represented by the person of the State. For Beccaria, in this way, those who committed criminal acts disrespected the contractual pact and should inevitably be punished. The author intends to apply these principles to the law in force in his time, formulating the new philosophical bases of modern criminal law and criminal procedure.
Another influence that Beccaria had received, specifically from Thomas Hobbes” discourse, and that was incorporated into his proposals was the understanding of the human being as hedonistic by nature. Man is driven by the search for pleasure and satisfaction, as he also seeks, to the same degree, to avoid pain and discomfort. Thus, he rationally calculates the possible courses of action, acting in the way he believes will maximize the satisfaction of his desires.
He thus faced the problem of the existing relations between subjects and sovereigns with regard to legislation, especially criminal legislation. To this end, he combated dictatorial interference in legislation and denied the monarch”s right to enact a law by his sole authority.
According to Beccaria, the sovereignty of the nation would be entrusted to the hands of the authority, which uses punitive means against violations of the laws, attending to the characteristics of the historical moment, the local conditions and the character of the people. Therefore, the assembly of the minimum parcels of liberties entrusted to this authority forms the right to punish, in which any abuse and injustice is characterized by excess. Therefore, punishments that exceed the limits drawn by security and public order are characterized as abusive and unjust. In this sense, penalties could only be the creation of the law of a general, humane character and applied by the magistrate. Those that are atrocious would offend the public good and distort their purpose, which is to prevent crime.
As Elio Monachesi argues, “the social contract theory is the major premise of Beccaria”s syllogism, and, supporting this basic proposition, the rest of Beccaria”s argument is not only logical but inevitably persuasive.”
As exposed in the introduction of this article, Beccaria is usually inserted in the so-called Classical School of Criminology. This, however, is an inappropriate term and an anachronistic characterization. Beccaria was not a criminologist, insofar as the discipline devoted to the systematic study of crime only appeared a century after his death. Nor did he belong to any “school” that held to a consistent set of ideas. The term criminology was first used by the French anthropologist Topinard, whose main work appeared in 1879. Thus, for 18th and early 19th century authors such as Beccaria, whose main interest was punishment or treatment rather than scientific analysis and observation of crime and criminals, the characterization as “penalist” or “penal reformer” is more appropriate.
From this point of view, criminology, as the study of the determinations of crime, is an evolutionary consequence of the study of penalogy. Authors such as Beccaria who, through humanitarian impulses, condemned the cruelties present in the right to punishment did not intend to create a new science, as criminology would consolidate itself. Beccaria, thus, can be seen as someone who introduced humanity into law, and not science.
Beccaria admits three sources from which the moral and political principles regulating men derive: revelation, natural law, and the artificial conventions of society, and there are three corresponding forms of justice: divine justice, natural justice, and human or political justice. This third depends on society and on the moment, unlike the other two, which are immutable and constant. Beccaria questions human justice, which is subject to errors and contradictions coming from man, and not from God. This point is a barrier to the criticism of being an “unbeliever” and a “conspirator”.
Having made these reservations about the Classical School, Beccaria, as a member of this school, admits some concepts:
Crime: wrong rational choice. By understanding this social phenomenon through the lens of rationality, the subject makes a rational calculation whose product is irrationality, or wrong rational choice.
Punishment: with a previous written and publicized prediction of punishment, it becomes an instrument of crime reduction. This is because individuals, faced with the prior knowledge of punishment, would be discouraged from acting accordingly. Punishment, therefore, has a preventive character and fits into the contractualist vision: some kind of brake was needed to prevent men from trying to return to the former chaos, to prevent them from trying to usurp the sovereign”s power, constituted by the freedoms given by the “contracting parties” for the sake of life in society.
Therefore, for Beccaria, criminal justice, to be socially effective, should be organized in such a way as to guarantee certain principles:
Inevitability of punishment: the goal is to convince the potential offender that punishment will always follow a criminal act, thus being a deterrent. Pardoning crimes is equivalent to encouraging impunity.
2. Consistency: guarantees that the same crime will always be followed by punishment of the same nature and gravity. It therefore vetoed the arbitrariness of judges.
3. Proportionality: the severity of punishments should reflect the gravity of the offense and damage caused. Thus, the measure of the crime is in the damage caused to society: “the more sacred and inviolable is the security offended against, and the greater the liberty which the sovereign preserves to his subjects,” the more just will be the penalties. Thus, all penalties that exceed the need to protect the social bond, generated by the deposit of freedom made by each citizen, are unjust by nature.
4. Celerity: the speed of punishment was seen as essential in light of the intention of impeding what the punishment itself was intended to accomplish. The legislator should set a reasonable time limit for the defense and the production of evidence without jeopardizing the clarification of the crime.
Building on Helvetius” utilitarian idea, Beccaria believes that society should be rationally organized to benefit the greatest number of individuals and to avoid unnecessary suffering and pain – increasing the well-being and happiness of its members.
This is the majority understanding of Beccaria: his utilitarian character was based on the defense that the future should be the primary concern of criminal justice, in that punishment aims to maximize the happiness of society. Thus, punishment would be a deterrent and should not be used if it did not increase the sum total of happiness.
The supposed retributivist character of Beccaria is defended by David B. Young who, despite recognizing utilitarian traits in Beccaria, argues that the thinker was essentially a retributivist and that he incorporated utilitarian ideas in his work almost always consistently. For the critic, retributivism holds that the criminal deserves to be punished because he violated the legal system from which everyone benefits. Since the criminal is himself a beneficiary of this system, he has not realized the quid pro quo of obedience, justifying punishment in order to make the benefits and responsibilities equivalent. Young believes that retributivism is present in Beccaria”s work, as well as in Immanuel Kant and Hegel, in the justification of the right to punish in a hypothetical social contract and the criminal”s violation of its conditions. Its retributivist character can also be seen in the defense of the offender”s human rights, even when inflicting punishment. On the other hand, in the measure of crimes, Beccaria, like Hegel, made use of utilitarian ideas, seeking to relate this measure to the relative importance of the different offenses.
Understanding crime as a rational wrong decision, Beccaria divides them into three types: those that immediately destroy society or those who represent it, those that offend a citizen”s particular security in life, and those that go against what each is obliged to do or not to do. Any action that does not fall into one of these categories cannot be called a crime. The political dogma without which there can be no legitimate society, and which must be believed by the people and expounded by magistrates, is the opinion that each citizen must be able to do anything that is not contrary to the laws, without fearing any other inconvenience that may arise from his own action.
Only with the provision of prior, written and published punishment does the penalty become an instrument of crime reduction. The code should be written in language accessible to the general public for their exact knowledge and for the progressive decline of crime. From this understanding, the principles presented above result: inevitability of punishment, consistency, proportionality and celerity. The process should end as quickly as possible, to spare the defendant the torments of uncertainty. The shorter the time elapsed between the crime and the punishment, the stronger the association between these two ideas.
Beccaria further argued that when the atrocity of punishment, if not immediately opposed to the public good and to the very purpose of preventing crimes, was only useless, it would also be contrary to those beneficial virtues, to justice, and to the nature of the social contract itself.
The true measure of crimes would be the harm to society, considering the concern of law to regulate social coexistence in a harmonious way. In this sense, Beccaria criticizes other ideas on the subject. For him, those who believed that this true measure would be the intention of those who commit the crime were wrong. This is because such intention depends on the ideas, passions and circumstances of each man and, therefore, varies greatly. Another criticism is made of those who measure crimes more by the dignity of the offended person than by their importance to the public good. Finally, he condemns those who think that the measure of crime is related to the seriousness of the sin.
He maintains, for example, that crimes against the person should be punished with corporal punishment, and that attacks committed against the security and freedom of citizens are a major crime. Theft without the use of violence, on the other hand, should be punished with monetary penalties. However, since it is a crime generally born out of misery and desperation, the most adequate punishment would be the only kind of slavery that can be called just: the temporary enslavement of labor and person to the common society. Theft accompanied by violence, on the other hand, should be punished with corporal and servile punishment.
Judges would have no authority to interpret laws, given their frequent arbitrariness. “Only laws can decree the penalties for crimes, and this authority can only be based on the work of the legislator, who represents the whole of society united by a social contract.
Thus, the only form of authentic interpretation, besides that reserved to the sovereign legislator, would be the literal one. Strict observance of the written law would represent the guarantee that citizens would no longer be subject to the tyrannies of the many, since the spirit of the law would hand over to the judge the life and liberty of each one, and could lead to contradictory decisions in equal or similar cases. In each offense, the judge must make a syllogism. The general law is the major premise, the alleged criminal act is the minor premise, and the logical consequence is the penalty or freedom. When the judge is constrained or when two syllogisms can be made, the door is opened to uncertainty. Likewise, uncertainty occurs when the judge makes erroneous reasoning or submits the analysis of the fact to his moods.
The judge must be impartial: “then the judges must be half peers of the defendant, half peers of the victim; thus, in balancing every private interest that modifies, even if involuntarily, the appearances of objects, only the laws and the truth speak.
Beccaria criticizes the different punishments that the same citizen receives in different courts. “For this reason, we see the same crimes in the same court punished differently in different times, because we have consulted not the constant and fixed word of the law, but the erratic instability of interpretations. He concludes that the interpretation of laws is an evil. The judge must do logical reasoning completely independent of external factors.
As for the evidence, Beccaria argued that the evidence authorizing conviction should be expressly stated in the law and not left to the discretion of the magistrate. However, he considers the rule that every man should be considered innocent until proven guilty.
Along the same lines, Beccaria is against secret trials and secret accusations, since they could lead to an unfair conviction and would make it impossible for the accused to defend himself due to his total ignorance. Secrecy generates distrust among the subjects
The credibility of witnesses is proportional to their interest in lying, hating, or loving, that is, the lower the credibility the greater the moods of the witness, and also his particular interests. It is necessary that there be more than one witness because, until such time as one affirms and another denies, nothing is certain, and the right that anyone has to be considered innocent prevails. Finally, we must emphasize the lack of credibility in oral testimonies, that is, when one repeats what someone has said, because the gestures, the tone, the exact words cannot be reproduced without vices.
Beccaria repudiates torture, calling it “consecrated cruelty”, since it is used “while the process is being formed, or to make him confess an offense, or for the contradictions in which he incurs, or for the discovery of accomplices, or for I know not what metaphysical and incomprehensible purging of infamy”. The author states that it is a method worthy only of cannibals and barbarians, and that it is certain that it absorbs the strong perverse, and condemns the weak innocent (since it is a test of resistance to pain, not a parameter of truth).
He believes that torture is usually used judicially as a means of extracting confession from suspects. This instrument is seen, under the influence of theories of natural law and of inalienable rights whose violation cannot be morally justified, as contrary to the right to preserve the very existence of the individual. This is because a confession obtained under torture would compel the suspects to compromise themselves, generating greater harm and suffering . Society, therefore, owes the individual protection until its responsibility is ascertained, without the incidence of cruel processes. It thus condemns, in an extremely up-to-date way, to treat as guilty someone only accused.
Torture poses a risk: if the purpose of punishment is to terrorize the innocent so that they will not commit their crimes, what is the coherence in torturing a possible innocent? A second inconsistency is the infamy that torture generates, when its purpose is supposedly to remove it. A third factor in the stupidity of torture is its application when the defendant contradicts himself. Now, how can one expect a man not to contradict himself when he does it in his own peace of mind? How can we also expect him not to invent facts, confess to something he didn”t do, or incriminate other people to save himself from suffering?
Beccaria shows all his repugnance and disbelief in this inhumane method. It should be clear that at no time does he oppose violent or cruel punishments, but he does oppose torture as a method of obtaining evidence.
All individuals have the fundamental right to life, which could not and should not be disrespected by others, including the sovereign power of the state. Rousseau defended the need for the death penalty to safeguard society from that evil-doer who attacked the social right. Beccaria prevents his legal sensibility and humanitarianism from conforming to these Rousseaunian ideas. For him, the death penalty is harmful to society because of the excessively cruel spectacle it presents and is considered innocuous for its intimidating effect on the person of the perpetrator or his fellow citizens.
In the social compact, men did not deposit their right to life with the sovereign. If they had, this would be illogical, inasmuch as the primary reason for the creation of society is to more effectively secure man”s right to live.
For him, just like the death penalty, putting a price on the head is totally useless. If the criminal is not in his country, such an attitude will cause citizens to also commit a crime, that of murder, and may even strike an innocent person. And if the criminal is in your country, such an attitude will show the weakness of your government. Furthermore, the use of putting a price on the head leads to a conflict between the norms, because at the same time that the legislator punishes treason, he authorizes it.
Beccaria believes that it is better to prevent crimes than to punish them and that prevention should be the primary end of all good legislation. This notion of prevention would be the basis of a well-balanced nation. However, he argues that the means used so far are generally false and contrary to the proposed end. For the author, to prohibit many acts is not to prevent the crimes that may originate from them, but to create new ones. Therefore, to increase the sphere of incidence of crimes is to increase the probability that they will be committed. The author goes on to cite some means of preventing crimes, among which he highlights the need for clear and simple laws, upheld by the entire nation, without anyone striving to destroy them. Another way to prevent crimes would be the enlightenment of the nation by science and reason in order to achieve freedom. Beccaria also mentions other ways to prevent crime, among which are the elimination of the corruption of magistrates and the rewarding of virtue. The surest but most difficult way to prevent crime is to improve education. However, the author informs us that this subject is very broad and goes beyond the limits of what he proposed to analyze, since it is a subject that very intrinsically affects the nature of government.
In addition to the central ideals of Beccaria”s thought set forth above, there are many others that merit consideration. Among them is the discussion of hard-to-prove crimes. The frequent crimes that are difficult to prove are adultery, pederasty, and infanticide. The action of the crime of adultery is considered by the author to be instantaneous and mysterious, so the legislator is the one who must prevent and correct the consequences of this crime. According to Beccaria, there is a general rule that every crime that should remain unpunished, the penalty becomes an incentive. Adultery and pederasty are frequent because there is a natural physical attraction, so the author considers that it is easier for the legislator to determine preventive measures than to repress them when they are already established. Infanticide, on the other hand, the author sees as the result of an inevitable contradiction, in which there is a person who has given in through weakness or violence. Thus, the best way to prevent this crime would be to protect, with effective laws, weakness against tyranny. Beccaria concludes with a general consequence of the three crimes: “a penalty for a crime cannot be called precisely just until the law has adopted the best possible means of preventing it (…)”.
The notion of false utility is also present in Beccaria”s ideas. Made by legislators, they are considered a source of errors and injustice. For the thinker, the laws that prohibit the carrying of weapons are of this false utility nature, because they disarm peaceful citizens, while criminals keep their weapons. Thus, it would be of no real use to disarm innocent people. Besides hurting individual freedom, the innocent would be subjected to inspections that only violators should be subjected to.
Beccaria”s work was an immediate success in much of Europe. It was acclaimed not because its content was at all original, since many of the ideas already permeated European discussion, but because it represented the first successful attempt to present a consistent and logically constructed penal system. Such a system was the proposal to replace the confusing, uncertain, abusive, and inhumane practices that were then inherent in the criminal law and punishment system of its time. Its proposal was desired and supported by public opinion and appeared at a time of growing revolt against absolutism and despotism. It was the product of an era given over to questioning the sanctity and utility of the then prevailing social institutions.
There are those who consider that his work was nothing more than a spiritual property of the great French philosophers of his time. Such a current of thought believes that the significant developments in history are determined by impersonal and mostly material forces. The subject, thus, is not seen as the center of the work and development, but as a mere tool of the great mass in which he is embedded – this is the thinking of Karl Marx, with the notions of the crowd and mass movements. It is a tempting theory in Beccaria”s case. However, although it is permitted and indeed essential to reinforce the understanding that, at a certain moment in the history of criminology, certain ideas and theories were “in the air”, it is not possible to state with certainty that, because of the immanent force of the circumstances of that moment, even without the presence of Beccaria, the history of criminology would have followed the same course.
Enrico Ferri, a member of the so-called Positivist School of Criminology, recognizing the debt of positivism to the Classical School, insisted, at the same time, that a drastic reform was necessary in criminal justice:
“The historical mission of the Classical School consisted in a reduction of punishment…. Today, we follow this practical and scientific mission, but we add to the problem of reducing punishment the problem of reducing crime.”
He affirmed that the work of Beccaria and his successors was more sentimental than scientific and that it promoted little progress in relation to what was defended in Antiquity and in the Middle Ages, because it was based on obsolete concepts of free will, guilt and responsibility. He criticized that, as in medicine, prevention was necessary, which was, in his view, more important than punishment or even cure, but which had been totally ignored by the Classical School. He also defended the need for a scientifically planned system. This ignorance pointed out by Ferri in relation to the Classical School, regarding the prevention of crime, can be questioned, insofar as Beccaria himself pointed out that the ultimate goal of all good legislation would be prevention, which, for him, could be achieved by various means: clear and precise laws; an end to corruption in the administration of justice, among others.
It is worth noting that without the perspective and recognition that Beccaria”s work was the first attempt of its time to present a consistent and logically constructed penal system, a modern day reader may recognize little new in the work. This is because what Beccaria proposed in the year 1764 has largely been achieved in the modern world. However, it is important to remember that it was Beccaria who played an essential role in the consolidation of penal practices evaluated today. In his work, it is possible to find practically all the reforms in the administration of criminal justice and penalogy that have been consolidated since the 18th century.
Of course, this recognition should not be exempt from criticism, as today the possibility of alternative sentences and the new perspectives of the science called criminology are discussed. However, it was the ideas of thinkers such as Beccaria that allowed criticisms to be built upon them, consequently allowing the development of new ideas. As Piers Berne argues, one should be careful with the traditional canons of historicism, which usually points out the Classical and Positivist Schools as antagonistic, under the risk of weakening all the complexity of the discussion and remain in superficial accusations that end up relegating the Classical School in the prehistory of criminology.
1762: Del disordine e de” rimedi delle monete nello stato di Milano nell” anno 1762
1764: Dei Delitti e Delle Pene – Italian version” Translations”: 1766 – French – It should be noted here that in 1765, Abbé André Morellet prepared a French translation of the book, in which he significantly altered the content of the original manuscript. This translation served as the basis for several editions. Thus, there are versions of the book that bear alterations made by people other than Beccaria. Whether these interventions are seen as legitimate editorial improvements or illegitimate interference is a matter of opinion .1767 – German 1768 – English and Dutch 1774 – Spanish1802 – Greek1803 – Russian
1804: publication of the lectures on Political Economy given by Beccaria at the Palatine School in Milan between 1768 and 1771 – Elementi di Economia Pubblica
In 1765, the Economic Society of Bern awarded him a gold medal for his work, praising him as a citizen and also praising his humanitarian advocacy.
In 2014, facing the 250th anniversary of the publication of Dos Delitos e Das Penas, many discussions and tributes were made regarding Beccaria”s contribution and its influence today. In Brazil, the book Beccaria (250 Years) and the drama of penal punishment, by Luiz Flávio Gomes, was published.
Many principles presented in On Crime and Punishment were incorporated into the American constitutional text and thinkers such as Jeramy Bentham were influenced by Beccaria”s ideas. It was in the French Revolution, however, that the principles advocated by Beccaria were enshrined, more specifically in the Declaration of the Rights of Man and of the Citizen of 1789, and in the French Penal Code of 1791, 1795, and 1810.
In the current times, many efforts have been made to prevent and reduce crime, but they have not yet produced satisfactory effects due to the defects of the adopted systems. The modern prison system has failed to prevent crime and to effectively re-socialize criminals.
Penalty is still considered today as violence of one or many towards individuals, however, it has not ceased to assume the condition of an essentially public measure, still applied proportionally to the gravity of the offense, but necessary in view of the current methods of repression. The criminal process is still obsolete and lengthy because of the need to guarantee an impartial investigation and the right of defense.
We see the influence of Beccaria in proposals such as the criminalization of corruption aimed at reducing its incidence. It is the idea of punishment with preventive intent – which enjoys questionable efficiency. This idea of punishment as a deterrent is also evaluated in the growing incorporation of criminal types in the various penal codes, such as the Brazilian, which despite this proposal, failed to reduce their incidence. On the contrary, the rate of crime shows an almost constant tendency to increase.
- Cesare Beccaria
- Cesare Beccaria
- ^ Il nome di «marchese di Beccaria», usato talvolta nella corrispondenza, si trova in molte fonti (tra cui l”Enciclopedia Britannica) ma è errato: il titolo esatto era «marchese di Gualdrasco e di Villareggio» (cfr. Maria G. Vitali, Cesare Beccaria, 1738-1794. Progresso e discorsi di economia politica, Paris, 2005, p. 9. Philippe Audegean, Introduzione, in Cesare Beccaria, Dei delitti e delle pene, Lione, 2009, p. 9.)
- ^ Maria G. Vitali in: Cesare Beccaria, 1738-1794. Progresso e discorsi di economia politica (Paris, L”Harmattan, 2005, p 9; Philippe Audegean, Introduzione, in Cesare Beccaria, Dei delitti e delle pene, Lione, ENS Editions, 2009, p. 9); Renzo Zorzi, Cesare Beccaria. Dramma della Giustizia, Milano, Mondadori, 1995, p. 53
- ^ Fridell, Ron (2004). Capital punishment. New York: Benchmark Books. p. 88. ISBN 0761415874.
- Le nom de marquis de Beccaria – que l”on trouve dans de très nombreuses sources (dont l”Encyclopædia Universalis) – semble erroné : on reprend ici la dénomination adoptée par Maria G. Vitali-Volant (Cesare Beccaria, 1738-1794 : cours et discours d”économie politique, Paris, L”Harmattan, 2005, p. 9) et par Philippe Audegean (“Introduction”, dans Cesare Beccaria, Des délits et des peines. Dei delitti e delle pene, Lyon, ENS Éditions, 2009, p. 9). Dans sa biographie de Beccaria, Renzo Zorzi (Cesare Beccaria. Il dramma della giustizia, Milan, Mondadori, 1995, p. 53) a en effet rappelé que, comme l”ont établi des recherches récentes, le grand-père de Beccaria a obtenu son titre de noblesse en acquérant en 1711 les deux fiefs de Gualdrasco et de Villareggio : Cesare est donc le troisième marquis du nom.
- C. Beccaria, Des délits et des peines, introduction (trad. Philippe Audegean, Lyon, ENS Éditions, 2009), p. 145.
- Titre italien : Dei delitti e delle pene. La première édition est de 1764 ; une deuxième édition, modifiée et augmentée de nouveaux chapitres, paraît en 1765 ; une troisième édition encore augmentée paraît en 1766.
- Jean-Yves Le Naour, Histoire de l”abolition de la peine de mort : 200 cents ans de combats, Paris, Perrin, 2011, 404 p. (ISBN 978-2-262-03628-7)