The Age of Enlightenment (conventionally, 1685-1815) saw the nations of Europe refocus from religion to the human condition on earth, reason as the method of improving it, and the rights of the individual. But in what field did this new commitment have the most personal meaning for individual lives? Where, in modern parlance, did “the rubber hit the road”?
The Reading Room
Cesare Beccaria’s Ideas on Criminal Law Shape the Bill of Rights
I vote confidently for a man who spent his life in Milan, Italy, often in the grip of depression, loath to leave his familiar surroundings, who became the first to apply reason to penology: the first to mount arguments against the death penalty, against torture to obtain confessions, against monstrously inhuman prison conditions, and against punishment as only vengeance instead of reform—to name a few issues.
He is called the “father of criminal justice” and the “father of criminal law.” Here were the Enlightenment’s rays falling upon some of the darkest regions of human life. Among his accomplishments, he influenced—profoundly—the founders of the new American republic and the constitution they drafted.
My impression is that Cesare Bonesana di Beccaria, the Marquis of Gualdrasco and Villareggio, born in Milan in 1738 (fifteen years after Adam Smith’s birth in Scotland and twenty-five years after Denis Diderot’s in France), is not generally known in the United States today. Yet, as a criminologist, economist, philosopher, and office holder, he is held to be among the greatest thinkers of the Age of Enlightenment. He published the first full work on reform of the criminal justice system, including penology.
Beccaria attended a Jesuit College in the city of Parma, reportedly bored and rebellious against what he saw as dogma, but then went to the University of Pavia, where he took his degree in law. So typical of the brightest minds of the age, he excelled at mathematics, the prototypical expression of “reason” and rational system. But even that lost interest for him when he discovered the works of Baron de Montesquieu, the French judge, writer, and historian, and turned his mind to economics. (By then, works of genius of Enlightenment thinkers in many fields were available.)
Beccaria’s response to the medieval education still dominant at the time—a response we see in Adam Smith at Oxford—was a lack of interest in scholastics that bordered on lethargy. Then, in his mid twenties, Beccaria befriended two brothers, Pietro and Alessandro Verri, and, with other young aristocrats in Milan, formed a literary society (in Italy typically called an “academy” and frequently, as elsewhere, a locus of intellectual ferment). They named it the “Academy of the Fist" to poke fun at sometimes pretentious academies popping up around Italy, and they adopted as a prime topic reforming the criminal justice system. In its pursuit, members read Enlightenment figures such as Helvetius, Diderot, Hume, and Montesquieu.
Four years out of law school, and bumped into motion by members of the group, Beccaria wrote a tract (pamphlet) taking on the chaotic currency of the Milanese states and pointing to a reform. It is of purely historical interest, today, but did reveal a writer capable of force and clarity. But by then, he had found his subject, and, again, the Academy of the Fist, with sessions held at the Verri home, was the inspiration and catalyst.
To set the context of Beccaria’s career, it is worth quoting at length a chapter from Prof. Elio Monachesi’s essay “Pioneers in Criminology IX—Cesare Beccaria,” from the Journal of Criminology and Law:
“Criminal law of eighteenth-century Europe vested in public officials the power to deprive persons of their freedom, property and life without regard for any of the principles which are now embodied in the phrase ‘due process of law.’ Secret accusations were in vogue and persons were imprisoned on the flimsiest of evidence.
“Torture, ingenious and horrible, was employed to wrench confessions from the recalcitrant. Judges were permitted to exercise unlimited discretion in punishing those convicted of crime. The sentences imposed were arbitrary, inconsistent, and depended upon the status and power of the convicted. Punishments inflicted upon the more unfortunate of the offenders were extremely severe. A great array of crimes was punished by death not infrequently preceded by inhuman atrocities. Equality before the law as a principle of justice was practically non-existent, but rather the treatment accorded persons depended solely upon the station in life of the offender.“In practice, no distinction was made between the accused and the convicted. Both were detained in the same institution and subjected to the same horrors of incarceration. This same practice prevailed in regard to the convicted young and old, the murderer and the bankrupt, first offenders and hardened criminals, men and women. All . . . were promiscuously thrown together free to intermingle and interact.”
Small wonder Enlightenment Europe, and America, would greet Beccaria’s work with sustained applause.
Both Pietro, then writing a history of torture, and Alessandro, a prison official in Milan, encouraged Beccaria to write his book An Essay on Crimes and Punishments (Del delitti e delle pene), the work above all for which he is remembered. The Verri brothers could supply first-hand observations of the criminal justice system and hellish conditions in prisons. For ideas, Beccaria had the sounding board of his Academy friends.
Today, what Beccaria published in 1764 is viewed as the climax of the Enlightenment in Milan. In his treatise, he mounts some of the first arguments against the death penalty. On Crimes and Punishments is also the first extensive book on penology and reform of the criminal justice system. True to form for Enlightenment thinkers, Beccaria urged that criminal justice and reform conform to rational principles. To some extent, he built upon the theoretical, historical work of his models such as the Dutch scholar and jurist Hugo Grotius to fashion a powerful work of advocacy as well as theory. But Beccaria’s was a work of advocacy and a call to action.
Here, Beccaria gives voice to a certain rationalistic Enlightenment mentality, writing: “For every crime that comes before him, a judge is required to complete a perfect syllogism in which the major premise must be the general law; the minor, the action that conforms or does not conform to the law; and the conclusion, acquittal or punishment. If the judge were constrained, or if he desired to frame even a single additional syllogism, the door would thereby be opened to uncertainty.”
How to enforce this constraint on judges? If laws are defined so clearly (today called a “bright line”) that the entire populace understands them, then the judge dare not weave a spell of words to conjure some other meaning.
The abuses he protests in this relatively short book are: torture to extract confessions, secret accusers, judges with unconstrained power, inconsistent sentencing influenced by personal connections or lack of them, and capital punishment, which was then used for even minor transgressions. He writes: “It seems so absurd to me that the laws, that are the expression of the public will, that hate and punish the murder, make one themselves, and, to dissuade citizens from the murder, order a public murder.”
Beccaria pays tribute to “the immortal Montesquieu” for inspiring humanism, then erects a position on the foundations of social contract theory (he credits Rousseau) and utility theory. Indeed, if social contract theory does not stand, then the structure of Beccaria’s argument wobbles. If it does stand as his “major premise,” then Beccaria is difficult to refute.
At the same time, however, he laid the foundations of a purely rationalistic approach to social change. All institutions and practices that do not fit your deductive system must be destroyed. It seemed to work well when applied to the field of criminal justice. But it is the premise, later applied to society as a whole, that Edmund Burke and others saw at work when “Paris went mad” during the French Revolution and which Burke challenged with his doctrine of conservatism.
Thus, for Beccaria, punishment is justified not as retaliation or personal vengeance but to uphold the social contract. Turning to utility, known then, but later inspired by Beccaria, far more extensively developed by Jeremy Bentham, founder of the school of Utilitarianism, Beccaria advocates methods of punishment that will promote the greatest public good or the amount of “happiness” in the world. “Just” punishment is defined, in effect, as practical punishment: “For a punishment to be just it should consist of only such gradations of intensity as suffice to deter men from committing crimes.”
In urging that punishment follow swiftly and consistently the commission of a crime, Beccaria invokes the Scottish philosopher David Hume’s thoughts on induction as based upon the proximity of cause and effect. Temporal proximity of crime and punishment would associate them in the minds of potential or repeat criminals and achieve what we call deterrence. His famous statement: “Crimes are more effectually prevented by the certainty than the severity of punishment.”
His ideas—common knowledge, today—were new to most people, including the whole hierarchy of the police-judiciary-penal system. Beccaria’s book—again, typical of the Enlightenment—was translated posthaste into French and English, going through several editions. A side note, here, is that the French translator saw problems with the organization and clarity of the material and omitted, added, or moved around whole sections of the book as he saw fit. Beccaria did write a letter approving the changes, but scholars point out that the result was two quite different books.
Proceeding on a view of human nature as defined by free will, potential rationality, and a mind manipulatable by psychology and social pressures, Beccaria addresses issues such as dueling (instead pass laws protecting individuals from insults to their honor), laws against suicide (ineffective), bounty hunting (shows government is weak), criminal law (clear definition of crimes to discourage interpretation by judges), punishments (commensurate with the crime, the worst being treason, which harms the social contract), gun control (not useful, disarms only those not disposed to commit a crime), and education (best long-term preventive measure against crime).
Thomas Jefferson, in his Legal Commonplace Book, 1762-1767, copied this passage on gun control: "The laws of this nature are those which forbid to wear [Jefferson would later write “bear”] arms, disarming those only who are not disposed to commit the crime which the laws mean to prevent." And such law “certainly makes the situation of the assaulted worse, and of the assailants better, and rather encourages than prevents murder, as it requires less courage to attack unarmed than armed persons."
Speaking of assaults, so potentially controversial were Beccaria’s views that he published his book anonymously. He was barely twenty-six years old. Only when praise came from around the world—Catherine the Great in Russia publicly endorsed it, Thomas Jefferson and John Adams quoted it, and Milan’s officials approved it—did the excessively shy Beccaria republish his book with his name on it.
The same shyness plagued his only trip abroad, when he was invited to Paris to meet other Enlightenment greats. The Verri brothers, as always, supported him and the philosophes welcomed him, but his shyness did not play well in Paris. He left soon, and by doing so, broke with the Verri brothers, baffled by his headlong retreat from success and celebrity, and went back to his young wife, Teresa, and his children, in Milan. He never again traveled outside Italy. One result was isolation from the friends whose inspiration and input had catalyzed and supported On Crimes and Punishments. Beccaria tried but never could complete another book. Still, his book’s celebrity bore him forward. Legal scholars hailed it, European emperors took the pledge, and reform of many European penal codes followed. The Grand Duchy of Tuscany became the first nation in the world to abolish the death penalty (accepting Beccaria’s argument from utility, but not that the state had no right to execute citizens). In the English-speaking world, apart from America, thinkers like Sir William Blackstone, the great English scholar of law, and Jeremy Bentham incorporated some of his ideas.
Beccaria received an appointment in 1768 to a chair of law and economy created for him at the Palatine University of Milan. His lectures on political economy place him in the English school of economists with their strict utilitarianism. Beccaria also entered government on the Milanese supreme economic council and a board commissioned to promote judicial reform. There, he managed to shine, at least occasionally, leading in some important reforms not just in criminal justice and penology but other government administration.
He died in Milan in 1794, in his mid fifties. Even before he died, he had seen his work reflected in the rights enumerated in the U.S. Constitution and Bill of Rights.
His ideas never have become uncontroversial, of course, as easily seen in the ceaseless debates about the death penalty, gun control laws, and swift sentencing—to take but a few examples. But his impact on dispelling darkness from the lives of countless generations caught in the criminal justice system, and his gift of humanity to all of us, is an urgently needed reminder, in our time, of the reality of struggle and glory in the Age of Enlightenment.