Two hundred and fifty years since the publication of On Crimes and Punishments: The currency of Cesare Beccaria’s thought*
| Date | 01 December 2014 |
| Published date | 01 December 2014 |
| DOI | 10.1177/1462474514551524 |
| Author | Luigi Ferrajoli |
| Subject Matter | Essay |
Essay
Punishment & Society
2014, Vol. 16(5) 501–519
! The Author(s) 2014
Two hundred and fifty
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years since the
DOI: 10.1177/1462474514551524
pun.sagepub.com
publication of On Crimes
and Punishments: The
currency of Cesare
Beccaria’s thought*
Luigi Ferrajoli
Roma Tre University, Italy
Abstract
This essay highlights three aspects of the extraordinarily current relevance of Cesare
Beccaria’s On Crimes and Punishments in the 250th year since its publication. The first
aspect concerns criminal law, which Beccaria founded anew as a system of individual
safeguards against the arbitrariness and excess of punishment – a normative model still
largely to be realized today. The second aspect consists in the constituent character of
Beccaria’s thought. Together with other Enlightenment thinkers, he paved the way for the
political doctrine of limited public powers – the doctrine that would usher in, well
beyond the boundaries of criminal law, the contemporary and still largely unaccom-
plished constitutionalism of legal safeguards and fundamental human rights. The third
aspect of Beccaria’s relevance consists in the critical and propositional role he assigned to
philosophical reflection vis-a`-vis positive law, on the ground of its axiological foundations
and a militant defence of the values inherent in the legal artifice.
Keywords
critique of the law, limited power, minimal punishment, safeguards
*In the 250th year since the publication of Cesare Beccaria’s On Crimes and Punishments in Leighorn, in order
to celebrate this classic volume, the School of Law of the University of Bologna organized, under the direction
of Renzo Orlandi, a series of talks, each one dedicated to a chapter of the book. The series took place during
the 2013–2014 academic year. Luigi Ferrajoli – the foremost Italian philosopher of law, standard-bearer of
Garantismo – was invited to give a final speech on the currency and importance of the book (on 14 April 2014).
Punishment and Society has the privilege of presenting that speech here, revised by the author, translated into
English by Filippo Valente, and edited by Dario Melossi.
Corresponding author:
Luigi Ferrajoli, Roma Tre University, Via Ostiense, 159, Roma, 00154, Italy.
Email: luigi.ferrajoli@uniroma3.it
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Punishment & Society 16(5)
Three respects in which Beccaria is our contemporary
To mark 250 years since the publication of Cesare Beccaria’s On Crimes and
Punishments is not just to revisit a classic – if not the classic – of philosophical
reflection on criminal law: it is also to take a moral and political stance in favour of
the values and principles which in that booklet were expressed in a way at once so
radical and so revolutionary.
What are these values and principles? And what is it that makes them still
current, still revolutionary today no less than in Beccaria’s own time? What is it,
in other words, that continues to make that marvellous little book a manifesto, at
once theoretical and political, speaking not only for penal liberalism but also,
more generally, for what today we call democratic constitutionalism protective of
basic freedoms? In this essay I will point out three aspects of this remarkable
currency.
The first aspect specifically concerns criminal law. Beccaria can appropriately
be described as the father of modern criminal law, conceived by him as a system
of protections for the individual, designed to minimize punitive violence by
providing for a set of rational limitations on the arbitrary and excessive use
of repressive power. From that point on, for two-and-a-half centuries, that
model built on individual protections has informed the liberal tradition in crim-
inal law. And yet, apart from the lip homage paid to it, the model has been
largely contradicted by legislatures and by practices in criminal law even in
democratic systems. Indeed, it remains an aspirational normative model thus
far unrealized, and though it cannot be realized in full, it is still largely
unrealized.
The second sense in which Beccaria can be described as still current is even more
significant. Along with other Enlightenment thinkers, Beccaria introduced the doc-
trine of limited public power. In this respect he can, by rights, be regarded as a
father of the modern constitutionalism of basic protections – a model or paradigm
of law as a system of limits and constraints that can be extended to all powers so as
to protect all basic rights and freedoms, well beyond the protections set up to
guarantee the rights to freedom from punitive power. As I have suggested and as
I will argue, this model is by and large still waiting to be put in practice and, above
all, to be built. One such implementation and construction depends on the future of
the rule of law and of democracy. And this, it seems to me, warrants our char-
acterizing Enlightenment thought, and in particular that of Beccaria, as constituent
political thought.
Finally, the third aspect of Beccaria’s currency concerns the pragmatic angle he
gave to legal science through his philosophical reflection on the axiological foun-
dations of criminal law and, more generally, of law and of the state. This pragmatic
interest, challenged and gutted by the technical approach to law that took hold in
the early 20th century, can be appreciated in the role the philosophy of justice
assigns to legal science as a platform through which to subject law to critical
scrutiny, while envisioning projects for it, on the basis of its underlying values.
Hence the militant character of legal science as an undertaking in defence of those
Ferrajoli
503
values in which Beccaria grounds theoretical and philosophical reflection on crim-
inal law, and which his work continues to hold up for the whole of legal and
political culture.
Minimizing punishment through a reliance on safeguards
Let us begin from the first aspect of Beccaria’s thought that makes it current.
Beccaria theorized a model of criminal and procedural law built around some
safeguards or basic protections designed to minimize punitive violence.
Significant in this regard is the expression ‘minimal criminal law’, which I myself
introduced some 30 years ago in a talk I gave in Barcelona criticizing penal-aboli-
tionist doctrines (Ferrajoli, 1985), and which was subsequently taken up in my
book Diritto e ragione (Ferrajoli, 2008: 197, 325–332, 339). The expression has
since made its way into the lexicon of criminal law, and even into the public
debate, but the point is that it suggested itself to me as I looked at the many
places where Beccaria sets out his project to minimize criminal punishment.
I will recall three of these places. The first of them is the famous ‘Conclusion’ of
On Crimes and Punishments, where Beccaria (1995 [1764]: ch. 47, p. 113, emphasis
added)1 sets out his ‘general axiom’ on punishments:
In order that a punishment should not be an act of violence perpetrated by one or
many upon a private citizen, it is essential that it should be public, speedy, necessary,
the minimum possible in the given circumstances, proportionate to the crime, and
determined by the law.
The second is the philosophical contractarian theory on the foundations of the
‘right to punish’ set out in Chapter 2:
Thus it is necessity which compelled men to give up a part of their freedom; and it is
therefore certain that none wished to surrender to the public repository more than the
smallest possible portion consistent with persuading others to defend him. The sum of
these smallest possible portions constitutes the right to punish; everything more than
that is no longer justice, but an abuse. (1995 [1764]: ch. 2, p. 11, emphases added)
The third passage is in Chapter 28, which stakes out a position against the death
penalty. Here Beccaria (1995 [1764]: ch. 28, p. 66, emphases added) goes back to
the contractarian argument, holding that in ‘the sum of the smallest portions of each
man’s own freedom’ – the freedom that each individual confers on the state – there
cannot be contained the right by which ‘men presume to slaughter their fellows’;
and he asks: ‘Who has ever willingly given up to others the authority to kill him?
How on earth can the minimum sacrifice of each individual’s freedom involve
handing over the greatest of all goods, life itself?’2
Now, an extraordinary, and usually neglected, aspect of Beccaria’s thought lies
in the complex philosophico-political foundation for these theses on the need to
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minimize punitive violence and on the inadmissibility of the death penalty. It is to
Beccaria that we owe both of the moral principles which make up this foundation
and through which he anticipates the two main orientations of present-day moral
and political philosophy – two streams usually set in contraposition to each other
but in his thought happily spliced together: one is contractarian, utilitarian and
relativist; the other, anti-contractarian, categorical and absolute. The first principle
is the utilitarian one he states right at the outset in the introduction to On Crimes
and Punishments, namely, ‘the greatest happiness shared among the greatest number’
as the objective of any rational legislation (1995 [1764]: 7, emphasis in original)3 –
the famous formula that would then be taken up by Jeremy Bentham (1962a [1780]:
ch. 1, § 4, p. 2, 1962b [1776]: ch. 1, § 48, p. 271) and that underpins the whole of
utilitarian moral philosophy. The second principle is the categorical one that
Beccaria (1995 [1764]: ch. 20,...
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