Beccaria's 'On Crimes and Punishments': A Mirror on the History of the Foundations of Modern Criminal Law

Abstract

In order that 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.' 2 With these words, penned when he was only 25 years old, Beccaria closed Dei delitti e delle pene, a concise treatise that would become the crown jewel of the Italian Enlightenment and a classic text of modern penality.An impassioned critique of the punishment practices of the seventeenth and eighteenth centuries, which Beccaria perceived to be excessive, brutal, arbitrary, and unequal, On Crimes and Punishments is a manifesto for legal reform centered on the Enlightenment values of rationality, proportionality, legality, lenience, and the rule of law.It offers a passionate plea against the use of judicial torture to extract confessions, as well as to exonerate guilt, against the use of secret evidence and sealed accusations, against sentencing inequalities based on wealth and social status, and against excessively brutal corporal punishments.The treatise was one of the first and became one of the leading tracts against capital punishment.It calls for reform toward the rule of law, principles of legality and fair notice, as well as more proportional, swift and certain punishments, drawing both on the tradition of the Philosophes of the Encyclopédie and on utilitarian notions-thus synthesizing deontological Enlightenment principles with core utilitarian insights.Beccaria's treatise was hugely influential on Blackstone and Bentham, and on the early development of utilitarian thought in penal justice, as well as on later developments during the twentieth century in the economic analysis of crime and punishment.Beccaria's theory and arguments were the target of pointed critiques by Kant and Hegel.The work also forms the keystone to Foucault's genealogy of the prison in Discipline and Punish: Beccaria's treatise captured perfectly, in Foucault's words, that 'new strategy for the exercise of the power to punish' 3 at the heart of the eighteenth century reform movement: 'to make of the punishment and repression of illegalities a regular function, coextensive with society; not to punish less, but to punish better; to punish with an attenuated severity perhaps, but in order to punish with more universality and necessity;

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