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Doc Cesare Beccaria Research Paper

1Born in Milan and doctor of law from the university of Pavia, the marquis Beccaria (1738-1794) acquired sudden and international celebrity in 1764 with the publication of Dei delitti et delle pene (‘On crimes and punishments’), a short and incisive work which proposes a reform of penal law based on the protection of individual rights and the social utility of punishments. Against the Senate where sat the aristocratic elite of the city which claimed a judiciary authority recognized by Milan’s ancient constitution, Beccaria thus maintained the reformative will of the Austrian sovereigns, whom he was trying to orient in a more radical direction. Briefly professor of economics in an establishment of higher learning instituted by the imperial authorities (1769-1770), he occupied from 1771 until his death a post of high functionary in the Milanese administration that definitively associates his name with the figure of an Enlightenment reformer.

2Other than a brief work in his youth proposing a reform of the Milanese monetary system (1762), Beccaria also published in 1771 his Research concerning the nature of style, a work of poetics sprinkled with borrowings from the article “Goût” of the Encyclopédie (t. VII, 1757), where Montesquieu had founded the principle of taste on curiosity as psychological source of the esthetic pleasure of variety: writers “who have pleased the most are those who have excited in the spirit the most sensations at the same time” (Essai sur le goût, OC, t. IX, p. 499); the idea is taken up by Beccaria: “The more numerous such sensations there are to gleam about the principal ideas, the greater will be the pleasure for the reader or hearer, for he will feel shimmering within him a greater number of sensitive chords” (Research concerning the nature of style, p. 23).

3But it is especially in On crimes and punishments that a genuine dialogue can be seen to be engaged with Montesquieu, the only author cited by name (with the exception of a sarcastic reference to three jurists and one conventional allusion to Hobbes, but found in the notice “to the reader”, and which is not by Beccaria), three times moreover. Beccaria does not hide his debt, which he will mention again in a letter to his French translator: “The moment of my conversion to philosophy dates back five years, when reading the Persian Letters” (“L’époque de ma conversion à la philosophie date d’il y a cinq ans, en lisant les Lettres persanes”, lettre to André Morellet, 26 January 1766, Edizione Nazionale delle Opere di Cesare Beccaria, vol. IV, Milan: Mediobanca, 1994, p. 222). A considerable debt, to the point of thinking that Beccaria did no more than apply Montesquieu’s ideas to one domain, penal law, which L’Esprit des lois, notably in Books VI and XII, no more than touched on: “The immortal President de Montesquieu passed rapidly over this topic” (“L’immortel président de Montesquieu a passé rapidement sur cette matière”, Des délits et des peines, introduction, 1991, p. 61 – Lyon, 2009, p. 145). But the Milanese immediately discourages this interpretation by underscoring the distance that separates himself from the Bordelais: “those who reflect and for whom I write will be able to distinguish my steps from his” (“les hommes qui pensent, et pour lesquels j’écris, sauront distinguer mes pas des siens”, ibid.).

4The relationship maintained with Montesquieu by the philosophes of the “Milan school” (expression of Voltaire repeated by Stendhal) united around Pietro Verri is symmetrical and inverse with respect to the relation they maintain with Rousseau. Indeed they like the republican political conclusions of the philosophe of Geneva, whose historical analyses they detest, as well as the critique of modernity, and the theory of amour-propre. In contrast they like the theory of history of the philosophe of La Brède, his praise of modern mildness, his definition of political freedom (EL, XI, 6, Paris: Classiques Garnier, 1973, t. 1, p. 169), but they detest his political conclusions and his defense of intermediary bodies.

5The penal theory of On crimes and punishments thus owes much to Montesquieu. It is in reference to the theory of agreeable commerce that the work traces the portrait of a modernity called shake off the plague of war through the civilizing action of work and exchanges. The description of modern mores supports the call for the moderation of punishments, in conformity with the conclusions already drawn by Montesquieu beginning with the Letter 78 [80] of Persian Letters, and radicalised by Beccaria in an abolitionist sense. Reason teaches moreover, as Montesquieu showed (EL, VI, 12-13) followed by Beccaria (On crimes and punishments, § XXVII), that the efficacy of punishments is not proportional but inversely proportional to their severity.

6But it is especially in constant and explicit reference to the definition of political freedom enunciated in L’Esprit des lois that the Delitti founds the penal doctrine on the guaranty of individual rights. It is as if a syllogism of Montesquieu’s had constantly served as guide and justification for Beccaria’s project: “Political freedom consists in security, or at least in the opinion one has of one’s security. This security is never more under attack than in public or private accusations. It is therefore on the goodness of the criminal laws that the freedom of the citizen principally depends” (“La liberté politique consiste dans la sûreté, ou du moins dans l’opinion que l’on a de sa sûreté. Cette sûreté n’est jamais plus attaquée que dans les accusations publiques ou privées. C’est donc de la bonté des lois criminelles que dépend principalement la liberté du citoyen”, EL, XII, 2, t. I, p. 202). This definition of freedom has a considerable importance for all the authors of the Milan School. Repeated several times word for word in Delitti, it serves as a foundation for the very interpretation of the social contract, for the principle of the certainty of punishments, for the rejection of the principle of arbitrariness and the interpretation of the laws, for the distinction between sovereign and magistrate, for the critique of the Venitian system of “secret accusations” (Delitti, § XV ; EL, V, 8, t. I, p. 61, et XI, 6, t. I, p. 169), for the necessity of prompt judgments. Thus, the theory of the judicial syllogism exposed in chapter IV of the Delitti generalizes a precept associated by Montesquieu only with republics (EL, VI, 3), where the judges are only “the mouth that pronounces the words of the law; inanimate beings who can moderate neither their force nor their rigor” (“la bouche qui prononce les paroles de la loi ; des êtres inanimés qui n’en peuvent modérer ni la force ni la rigueur”, EL, XI, 6, t. I, p. 176). Finally, the cardinal principle of the necessity that alone confers legitimacy not only on all punishment, but more broadly on “every act of authority from one man to another” (“tout acte d’autorité d’homme à homme”, Delitti, § II, p. 63), is associated by Beccaria with a passage in L’Esprit des lois: “Every punishment that does not derive from necessity is tyrannical” (“Toute peine qui ne dérive pas de la nécessité est tyrannique”, EL, XIX, 14, t. I, p. 336).

7However, the explicit homage rendered to Montesquieu for the fecundity of his historical analyses and juridical definitions is accompanied by an implicit political criticism, which readers of the time could not fail to recognize. Engaged in the struggle against the Milanese Senate, the Lombard reformers were very hostile to the “parliamentary thesis” and have only fairly harsh words against the so-called “intermediary bodies”. Beccaria has recourse to antiphrasis and preterition: “I shall not examine […] whether it is true that [the distinction between nobles and commoners] constitutes an intermediary power which limits the excesses of the two extremes” (Delitti, § XXI, p. 111-209). Such a power is in effect, he responds, only an intermediario dispotismo, “all the more cruel in that it is less assured, which interposes itself between the sovereign and the people to smother the wishes of the latter” (§ XXVIII, p. 135-241). It is no doubt equally and largely against Montesquieu and this “intermediate despotism” of the grandees and nobles that the Delitti accords a new and positive value to the term despotism. Indeed, “the despotism of a large number of men can only be corrected by the despotism of one alone” (§ IV, p. 69; 155-157); thus, a state destined by its size to be despotic (as Montesquieu showed in L’Esprit des lois, VIII, 19-20) can be subdivided in repubbliche federative [‘federative republics’] (a concept taken from L’Esprit des lois, IX, 1, t. I, p. 141) only thanks to some dictator [dittatore dispotico] who has the courage of Sulla” (Delitti, § XXVI, p. 122-225) ; “this salutary, but temporary, despotism, is itself destined to favor the beneficent reign of ‘despotism of law’, opposed to ‘dispotismo degli uomini’” (§ IX, p. 82; p. 173).

8This distancing with respect to the “immortal President” thus takes place essentially on the level of political institutions, and not principles and juridical procedures. Thus, Beccaria has been reproached with contradicting the republican modernity of his doctrine when he affirms, in conformity with Montesquieu’s analyses (EL, XI, 6, t. I, p. 171), the utility of the law “which would have every man be judged by his peers” (Delitti, § XIV, p. 92; 185). But when Montesquieu maintains that there must be censors in a republic and not in monarchies (EL, V, 19), Beccaria rejects these distinctions and retains only the opposition of legitimate to illegitimate: “If a government needs censors and, generally, extraordinary magistrates, that comes from the weakness of its constitution and does not characterize a well-organized government” (Delitti, § XI, p. 85; 177).

Bibliography

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Seth Carter Rule of Law

1 March 2016

Presenting and Evaluating the Argument of Cesare Beccaria Against Capital Punishment

Establishing a philosophical framework for society as a contract between a sovereign, governmental authority and the individual members that collectively unite under this system, Cesare Beccaria asserts that the death penalty is neither effective nor necessary for the main- tenance of justice. Beccaria presents evidence derived from historical examples, his own social observations, and original lines of reasoning to criticize capital punishment and instead advo- cate punishment in the form of long-term labor. Beccaria proceeds to examine the duration and, in essence, the perceived psychosocial inadequacies he finds inherent in capital punishment in contrast to the argued social benefits of prolonged labor and deprivation of liberty as punish- ment. Although Beccaria thoroughly elucidates his argument, weaknesses include his dubiously justified causal claims, which rely on his intuition of human behavior in response to certain so- cial institutions. In spite of this vulnerability, I agree that the strength of the lines of reasoning that Beccaria presents, supplemented by observational evidence with highly probable implica- tions validate his critique and make his argument relatively cogent and successful in discrediting the utilization of capital punishment in society as he theoretically conceives it. The philosophical foundation for Beccaria’s approach to societal punishment is based on his model of social contract in which individuals and society seek to maintain a balance of liberty and security for participants while upholding ‘justice’ which he defines as the bonds necessary to hold private interests together. Under this framework, Beccaria begins his critique with a tacti- cal concession of the two cases in which he would view capital punishment as ethically justified. Utilizing a consequentialist ethic, in which philosophical rightness of action is determined by the quantity of net positive consequences for all people, Beccaria admits that situations in which either the citizen has the influence while still being alive and deprived of liberty to inspire vio- lence, or only the citizen’s death will act as a deterrent for committing crime would make the killing of the citizen necessary to prevent greater harm from befalling society. This approach ap- pears to clarify his intention of criticizing capital punishment in general as an effective institution for addressing criminal activity, rather than seeking to argue that killing a citizen in all cases is unjustified. This clarification appears invaluable to maintaining the integrity and focus of his ar- gument which is contingent on his political philosophy of upholding optimal justice and the in- tegrity of the social contract. (Beccaria 48)

In deviating from a focus on theory, Beccaria seeks to provide evidence of a more empir- ical nature by first mentioning the societies of the ancient Romans and the reign of Empress Elizabeth of Muscovy as examples demonstrating the inefficacy of the threat of death. In each of these societies, Beccaria highlights how the threat of the ‘ultimate punishment’ does not deter men who are determined to harm society from proceeding to do so, and utilizes this reoccurring phenomenon as a gateway in the more theoretical and psychosocial aspects of his argument. Although the evidence that Beccaria provides is case-specific and presented without in-depth historical context or analysis of potentially spurious causes or relations, the mention of the events appears important for the purpose of establishing that, in fact, the threat of death has been an ineffective means of behavioral control in at least some, if not many cases, which would contradict any absolutist claims in favor of capital punishment as a deterrent. (Beccaria 49-50)

In arguing for the inefficacy of capital punishment as an effective means of deterring crime, Beccaria proceeds to make a psychosocial claim, which is defined as an asserting result- ing from the study of human mental development as it relates to context of a social environment. Specifically, Beccaria presents the thesis that the duration of a long and arduous punishment has a greater impact on the human mind than quick and even atrociously painful death, thus resulting in a better mechanism for discouraging violation of the social contract. Beccaria as- serts that men more clearly feel compelled by the idea of prolonged labor and wretchedness for themselves than death which appears in what he calls “hazy distance” (Beccaria 49). Evidence for this assertion arises from Beccaria’s observation that the emotions in outside observers in- spired by the death penalty are far more diverse than simple fear alone. Believing that the goal of institutional punishment is to instill fear in individuals to deter them from committing crimes and maintain the integrity of the social contract, Beccaria argues that the death penalty fails to achieve its own goal. The array of emotions that Beccaria claims occur predominantly when citi- zens witness capital punishment include the pleasure of entertainment, pity for the accused, and scorn for the alleged wrongdoings of the accused. In observing forced labor, conversely, Becca- ria believes that fear becomes the dominant sentiment, and thus, would be more effective. Addi- tionally, Beccaria contends that exposure to the consequences of punishment for outside ob- servers has the potential to be far more frequent and compelling if members are able to contin- uously view the consequences of long-term labor and have the punishment more gradually im- pressed into their minds to the point of habit. The theoretical aspect of Beccaria’s claim is, of course, prone to skepticism due to its seeming lack of rigorous empirical verification. Without experimentation or concrete results derived from direct study, Beccaria’s conclusions on how groups of people may react appear purely speculative rather than definitive. Indeed, one of the principle weaknesses of this point in his argument appears to arise from the fact that sentiments such as entertainment, pity, and scorn appear conceivable from onlookers in response to some forms of prolonged labor. One could then proceed to criticize Beccaria’s position by asserting that he presumes too much based on his mere intuition in regards to how human emotions func- tion, but such a counterargument would not preclude the real possibility that a higher proportion of fear, rather than pleasure and scorn for people, may still exist in the institution of prolonged labor as opposed to capital punishment. Additionally, the efficacy of gradual conditioning as op- posed to traumatic lessons in regards to influencing proper behavior appears to possess mod- ern psychological merit in regards to Beccaria’s claim that this strategy is more effective. (Bec- caria 51-53)

In furthering the idea that capital punishment is unnecessary, Beccaria utilizes the logical consequences of his theoretical framework of the social contract and builds on these conse- quences by explaining how capital punishment violates the nature of the contract, does not ac- commodate the psychological attitudes of members, and may even lead to inherently contradic- tory attitudes towards violence for those taking part in the social contract. Beccaria’s accusation of potential logical contradiction in those who would accept the theory of social contract while supporting capital punishment stems from the idea that, if the intention of laws is to moderate human behavior in such a manner that it opposes the more violent aspect of human nature prevalent outside of society, then capital punishment contradicts this intention by institutionally advocating the consequence of homicide while claiming to disapprove of homicide as something to be proscribed in civilized society. In, again, relying on the theory of social contract between governing society and its members, Beccaria establishes that, fundamentally, he believes that members of society give up small amounts of their personal liberty, and that essentially the ag- gregate of this concession forms the role of society in collectively punishing certain members for the purpose of deterring crime and maintaining order. It then follows, Beccaria states, that in or- der to be just, the punishment of society must not exceed what is necessary to deter crime, as doing so would violate the original agreement of the social contract. Beccaria proceeds to argue that a consequence of this condition is resentment on the part of the wronged position of the individual in regards to the social contract, and may even act as a catalyst for fanaticism. Becca- ria proceeds to explain that, even as a rational actor, an individual who feels wronged could conclude that the consequence of their crime is very much worth the fleeting suffering of capital punishment to achieve their own rebellious or personal ends in exercising a greater degree of liberty against society itself. In contrast, Beccaria then explains that such a rational conclusion could scarcely be made if long-term labor were to take the place of capital punishment (Becca- ria 52-53)

Under this scenario, the rational individual is forced to weigh the temporary and likely short-lived benefits of their transgression against the cumbersome and weighty consideration of slow, and arduous long-term labor that is more likely to inspire deliberative dread rather than morbid satisfaction. Beccaria acknowledges that his position may be countered with the asser- tion that the level of cruelty imposed by long-term labor may be equal to or greater than the level of cruelty of capital punishment, in seeming contradiction of his theory’s tenet that punishment should not exceed the impact of the crime committed. In response, however, he replies that the mechanism of long-term labor, nonetheless, consequentially helps society for the better by means of redirecting the rationality of potential perpetrators from emphasis on the present suf- fering of those undergoing capital punishment to the emphasis on the future suffering that those being punished and those observing are able to dread as a deliberative prospect (Beccaria 52-53). More generally, Beccaria recognizes that perceived cruelty on the part of judges, magis- trates, and others who enforce could lead to the citizens distrusting or disrespecting the gov- ernment as a law-enforcing entity in its own right, thereby significantly weakening the social con- tract between the government and non-law breakers.

In highlighting what Beccaria perceives as the pragmatic, or dealing in a way that is practical rather theoretical, deficiencies in the societal utilization of capital punishment, Beccaria concludes his argument with the conjecture that death penalty, even outside the context of Bec- caria’s theory, appears to affect the culture and social attitudes of the population negatively.

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