Introduction

Cesare Beccaria (1738–1794) was an Italian jurist and philosopher. In little over a hundred pages, in 1764, he formulated the basis of modern criminal law.

The explicit aim of his On crimes and punishments was that of studying and combatting “the cruelty of punishments and the irregularities of criminal procedures” (Beccaria 2008: 10).

This double objective pushed the author toward redefining penal law: if its primary function is to protect citizens from criminals, it should also, however, protect them from unjust accusations and must protect not only the accused from iniquitous procedures (such as torture) but also the guilty from excessive punishment.

In this overall framework, the chapter “Of the punishment of death” stands out as it includes the first complete, structured argument against the death penalty, in the name of the principle of “mildness of punishments” (Beccaria 2008: 49).

Utilitarianism

Beccaria arrived at this position by means of penal utilitarianism. But how could this have enabled him to construct a theory which so carefully defended the fundamental rights of the individual from the excessive punishment of the state?

In order to understand this, we must remember that the term “utilitarianism” serves only to describe a theory of human motivation: it is thus to be understood in the strict sense sometimes used about some eighteenth-century doctrines (such as that of Helvétius) and not in the metaethical use which became standard only with Jeremy Bentham, although it is true that Bentham himself identified a source of his own thinking in the convincing motto of Beccaria according to which the only true task of the law was “the greatest happiness shared among the greatest number” (Beccaria 2008: 9).

In this way, unlike “classic” utilitarianism, the ante litteram version of Beccaria was perfectly in line with a concept of justice founded on consensus, and thus on the juridical model of the contract (Francioni 1990).

In the contractual models that preceded Beccaria, sentences were considered legitimate as long as they either conformed to the natural right to punish (Locke) or met the criteria of efficiency with respect to deterrence and reparation (Pufendorf). Beccaria aligns himself with the latter, with the difference that in his model of contract, punishments are not left to the discretion of the sovereign but are desired and chosen by the citizens themselves. They are thus legitimate only if they conform, first of all, to the innate human desire for liberty and security. This theoretical starting point itself brings with it a redefinition of penal law, no longer the defense of the sovereign against social disorder but that of the citizen against personal violence, indeed against all violence, including that of the state.

In order to define a legitimate penal law, then, it is necessary to start from what men and women desired when they entered into society: what they wanted was to flee from “a perpetual state of war where the enjoyment of liberty was rendered useless by the uncertainty of its preservation” (Beccaria 2008: 19). In short, they wanted to make their freedom useful. This description implies two things from which all the principles of penal law derive.

The primary objective of society is the usefulness of the individual. Men and women are indeed so interested in their present welfare that it was only the necessity of procuring it which gave rise to the institution of a civil order.

The first consequence of this is the principle of the lesser evil: men and women have been able to accept only minor sacrifices, conceding to the sovereign the least power possible. A penal order is thus just only if it has recourse to the least necessary evil: the punishment must inflict the least restriction and the least suffering possible.

A second consequence is the principle of materiality, which represents the translation, in penal terms, of the general principle of secularism. It is possible to prohibit an action only if it endangers civil life, only if it produces real and materially observable damage, and not for moral or religious reasons: only real, externalized behavior can be prohibited, not only thoughts or intentions.

A third consequence is the exclusively preventive function of punishment. A punishment is evil and a useless evil is irrational or cruel. And as only the future can be changed, any retributivist justification of punishment should be rejected. Punishment is meted out not because the perpetrator deserves it but so that he or she does not commit further crimes.

Even before Kant, Beccaria figured out the mutually exclusive nature of the two concepts of retribution and prevention, rejecting, however, the first, and provoking fierce criticism on the part of the German philosopher. To decide upon or inflict a punishment in relation to higher ideals (whether moral or religious, retributive or for the purposes of expiation) or to lower passions (anger, revenge) is to go against human reason, entirely oriented toward the legitimate desire for happiness. Still following the utilitarian perspective, the essential principle of the proportionality of the punishment is justified independently of any reference to retribution.

This penal utilitarianism, however, is not in contradiction with the principle of the least evil possible because, following Montesquieu, Beccaria thinks that the deterring force of punishment is not proportional to the pain that it inflicts. The legislator can and must, therefore, follow a principle of parsimony in punishment, and give sentences which are milder when they can be shown to be as deterrent or even more deterrent than harsher ones.

Humanitarianism

The fundamental aim of civil society remains, however, freedom, as this is the very condition of utility. True human freedom can be defined, nonetheless, not by its physical or metaphysical source, but by its real practical application. This depends on the reasonable certainty of being able to undertake any legitimate action without fear of being prevented by the arbitrary will of others. In the permanent uncertainty of the state of nature, in fact, fear inhibits every action: in this case there is independence but not true freedom.

On the level of punishment, the first consequence is the need for the rigid application of the principle of legality, according to which there are no offences or punishments which have not previously been specified in law. If a judge could choose the punishment on the basis of a personal evaluation of its social usefulness, citizens would return to that state of uncertainty that criminal law itself had the task of eliminating.

Another consequence is the principle of the presumption of innocence, which must protect the accused from any violence before the sentence: “No man can be considered guilty before the judge has reached a verdict” (Beccaria 2008: 32).

A third consequence is the principle of the personal nature of the punishment, which must never be inflicted on any other than the guilty person, even if this injustice could be useful as an intimidatory action.

The “humanitarian” emphasis of Beccaria regarding the rights of the individual, then, derives from his “utilitarianism.” This is based on a vision of man as a feeling being who desires to suffer as little as possible, to be able to seek happiness, and to use concretely his freedom, understood to mean “belief in one’s own security” (Beccaria 2008: 58).

Cross-References