Friday, January 12, 2007

Cesare Beccaria "Of Crimes and Punishments" (1764)

The empirical project of the Enlightenment is tied to a larger project of reform of social institutions. If men can use their individual reason to analyze the structures that they are born into, the hope is that they can then rationally organize those structures. They can base institutions on a foundation of empirical reason, instead of upon inherited ideas, prejudices, or superstitions. Therefore, many Enlightenment arguments for reform begin with an appeal to empirical reason.

Cesare Beccaria begins his examination Of Crimes and Punishments by similarly criticizing those people who allow their opinions "be determined rather by the opinions of others than by the result of their own examination." Laws should, rationally, be established to secure "The greatest happiness for the greatest number", but instead have reflected the private interests of powerful people, a claim that, interestingly, Nietzsche will repeat about all morality in The Genealogy of Morals.

Beccaria accepts a Hobbsian view of natural man and agrees that individuals enter into civil society to escape a state of war. He therefore shares the contractualist argument of Hobbes and Rousseau- society is bound together by an unwritten contract between rulers and ruled. However, he differs from Hobbes in believing that the only laws that are valid are those that correspond to "the indelible sentiments of the heart of man." Anything that goes beyond the need to keep order, as determined by the individual in searching his own conscience, is invalid. Therefore, intellectual and moral self-determination, what Beccaria calls enlightened reason, is crucial for keeping societies from swinging into tyranny.

Beccaria is therefore part of the Enlightenment argument of Constitutionalism- that is, the idea that the power of government should be restrained from interfering in social life as much as possible, that societies should however be governed by laws, and that when the state must use laws to keep order, those laws should be fixed, abstract, and general. (see Montesquieu) Laws prevent a ruler from acting in an arbitrary way, and so becoming a tyrant. As Franz Neumann explains it, the legislature is a mouthpiece for the laws and not vice-versa.

Every member of society should know when he is criminal and when innocent.

The punishment of a crime cannot be just if the society has done nothing to prevent it.

That a punishment may not be an act of violence, of one, or of many, against a private member of society, it should be public, immediate, and necessary, the least possible in the case given, proportioned to the crime, and determined by the laws.

Beccaria argues that crimes should be measured by the harm they do to society. Punishments should have the aim of preventing the criminal from doing further harm to society, and to prevent others from commiting those crimes. Trials are public, and punishments serve a didactic function. They should be speedy so as to make a greater impression. He believes that torture is barbaric because it punishes someone who hasn't yet been found guity, and as morality is a matter of reason, it can't be induced by physical pain. It can also encourage the innocent to confess falsely to avoid further pain. Torture has been adopted by custom and superstition.

Similarly, Beccaria opposes the death penalty as being "neither useful nor necessary" in society. It is carried out too quickly to make a suitable impression on potential criminals, and removes the possibility of reforming the guilty. Similarly, putting a price on a fugitive's head "confounds all the ideas of virtue and morality, already too wavering in the mind of man." Also "the most certain method of preventing crimes is, to perfect the system of education."

In a sense, punishments share in the Enlightenment project of public pedagogy. As Foucault critiques in Punish and Discipline, 'rational' punishment here is inscribed upon the soul and not the body of the offender. Beccaria wants punishments to be 'certain' but not 'severe'. They teach the criminal a lesson, but not through physical pain. Unlike Foucault, I consider the way that this punishment is doled out in modern prisons to be in great need of reform, but a step above corporal punishment. Also, unlike Foucault, I don't see possibilities for freedom as necessarily existing in transgression.

He also shares the Utility argument of Bentham- that laws should ensure the greatest happiness for the greatest number. He shares the enlightenment idea that social institutions can be made more rational and thus improved- the idea of progress. He also shares the enlightenment idea that this can occur if laws are made concordent with "the natural sentiments of mankind".

State of Nature: "There is this difference between a state of society and a state of nature, that a savage does no more mischief to another than is necessary to procure some benefit to himself: but a man in society is sometimes tempted, from a fault in the laws, to injure another without any prospect of advantage."


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