by John Hostettler author of Cesare Beccaria: The Genius of “On Crimes and Punishments”.
How many people in England today have heard of Cesare Beccaria? Very few, I imagine. And the same could have been said of him in Europe in 1764 when, at the age of 26 he wrote his short book entitled On Crimes and Punishments (Dei Delitti e delle Pene in its original Italian). Yet, a year later his fame reached world-wide because of the sheer genius of that book.
Why then is he so little known today? The answer lies in the phenomenal success his book had when first published, which resulted in his achievements becoming part of the fabric of our lives. As a consequence, we take freedom from torture and cruel criminal laws for granted and give little thought to how such freedom came about. Yet, those achievements, encapsulated in the concepts of human rights and the rule of law, are now endangered.
Beccaria battled – against venomous opposition from the Roman Catholic Church and many lawyers – for a humane legal system. In eighteenth century continental Europe penal law was barbaric. Gallows were a regular feature of the landscape, and branding and mutilation were common as punishments. Men were tortuously broken on the wheel. Torture and death were the cornerstones of criminal justice systems and, although the position was better in Britain, England still had what Sir Robert Peel called England’s ‘Bloody Code’ with hanging by the neck the penalty for over 200 crimes, many of them of a trivial nature.
It was against this background that the young Italian Count produced his bombshell of a book which influenced Bentham and Romilly in England and had a profound effect on Maria Theresa in Austria and Catherine the Great in Russia. Its influence even spread to the Bill of Rights of the newly independent American Republic through the insistence of future Presidents John Adams and Thomas Jefferson. In Europe it was immediately hailed by the leaders of the Enlightenment including Voltaire. It spread like wildfire with Maria Theresa and the Grand Duke Leopold of Tuscany publicly changing their laws in conformity with the principles of the book, whilst Catherine the Great asked Beccaria to go to Russia to oversee the implementation of his proposals that she was adopting. Sweden and Portugal also enacted new codes of criminal law based upon Beccaria’s principles.
by John Hostettler author of Cesare Beccaria: The Genius of “On Crimes and Punishments”. September 2010.
What Beccaria proposed was that torture and the death penalty, which together formed the binding cement of the European inquisitorial system, should be abolished; that criminal trials should be prompt; and that punishments be fair and impartial. He saw these aims as part of a transformation to a more rational and enlightened society based on the social contract philosophy. In the event, they became the inspiration of a new philosophical movement for the reduction of all punishments which swiftly swept across continental Europe.
All punishment is in itself evil, declared Beccaria, since it inflicts pain. It is a kind of ‘counter-crime’ committed with the authority of the law. Hence, it should be indulged in only to exclude some greater evil. It does not exist to torture human beings or to rescind a crime already committed. It is to prevent criminals from doing further harm to society and to deter others from committing crimes.
Beccaria believed that the death penalty failed to act as a deterrent and was, therefore, useless. It was itself a barbarous act of violence and injustice, since it rendered an act legitimate in payment for an equivalent act of violence. He continued that countries and times most notorious for the severity of punishments were always those in which the most bloody and inhuman actions and the most atrocious crimes were committed, for the hand of the legislator and that of the assassin were directed by the same spirit of ferocity. To avoid being an act of violence, he concluded, every punishment, ‘should be public, immediate and necessary; the least possible in the case; proportioned to the crime and determined by the law’. It needed to be public to avoid punishments such as torture being carried out behind closed doors.
Today there are again sharp disagreements on the purposes of punishment and the function of prisons. In many parts of the world, including the consequences of recent experiences in the United States, capital punishment and forms of torture are again exciting the minds and passions of many people. Beccaria showed the way with his opposition to arbitrary rule, cruelty and intolerance and his book is a powerful stimulus in helping to resolve current issues in criminal law and make clear the role of the Criminal Justice System.
The perception and reasoning of Beccaria about the need for humanity in criminal law and the role of the rule of law as a binding force in society show the genius of a book that still has many lessons for the lawyers and criminologists of twenty-first century Britain. At a time when civil liberties are being threatened by the belief of men in power like former President George W. Bush – who considered that waterboarding is not torture – or the former Prime Minister, Tony Blair – who has said that it is a dangerous misjudgement to put civil liberties before anti-terrorism laws – it is to be hoped that the Rule of Law and human rights will prevail. Beccaria’s book can go a long way in helping ensure the victory of humanity.