This post was prompted by two things.
The first was this comment responding my post about the two recent Borgia TV series, which mentioned TV depictions of horrific pre-modern executions.
Jen: “I am watching the final episode of The Borgias, Season 2, in which Savonarola is tortured and burnt at the stake, and again I find myself wondering – what was the supposed justification and thinking behind these acts? What did the church think burning people achieved? I know it was meant to be symbolic in some way, but of what I don’t know. I just do not understand why people were capable of such hideous acts of evil and why they did not realise that it was evil? How on earth could they reconcile this acts with their supposed devout religious beliefs??? Why was torture used without a second thought? So many questions about humanity and religion. Why did it take so long for us humans to develop a moral compass, and to value compassion?”
Addressing all these questions would take me deep into fraught realms of psychology, speculation, and accusation, and also deep into unhappy contemporary controversies over torture and capital punishment, none of which I want to stick my foot in. I do believe I can respond in one useful way with an historical portrait of one important moment in the history of this question. This is also one of those great undersung moments of real history which is so unilaterally good that it can all make us feel that much more proud to be human.
My second prompt was a recent experience with jury duty. There was some excitement among my friends when I was summoned for jury duty, speculating about how exactly I would get myself disqualified, since they were confident no attorney in the land would want me. I did rather want to be on the jury, in the name of interesting life experiences, so I started out trying to be inert and quiet, but eventually the defense attorney brought up that he saw from the sheet that I was a professor and asked me what I taught, and it was clear from that that I was pre-disqualified whatever I did, so decided thereafter to be honest. The jury selection scene was so stereotypical as to be almost a parody of itself, with a clean-cut young city slicker prosecutor with a distinctively stylish haircut, black pinstripe suit, rimless glasses who had such a boyish face he might have passed for an undergrad, facing off against a gray-haired defense attorney in a corduroy jacket and jeans with a southern drawl and a giant belt buckle shaped like Texas.
In his slow, meandering style (and with a gratuitous, emotionally manipulative photo of a mother cradling a baby on his Powerpoint, which was absolutely unrelated to any aspect of the case at hand) the defense attorney proceeded to go along the line and ask each potential juror what they thought the purpose of judicial punishment was: deterrence or rehabilitation. When asked to define “deterrence,” he explained it as “punishment, let’s get ‘em, eye for an eye, tooth for a tooth.” He went along getting a ratio of about two rehabilitations to one deterrence until he got to me. I froze a moment, pursed my lips, then delivered what was honestly absolutely the most restrained impassioned speech I could manage. “You’re conflating two different types of justice,” I said (rough reconstruction). “Eye for an eye justice isn’t deterrence, it’s retributive justice, and the two are radically different. Retributive justice selects punishments with the goal of inflicting some punishment on the guilty party in order to achieve some kind of justice, balance, repentance, or fairness. Deterrence-based justice instead selects punishments based on what effect the punishment will have on the general population as a disincentive discouraging the crime in question. The two are not only different but, from an historical perspective, directly opposed, and their opposition is at the heart of all post-Enlightenment judicial codes including our own, thanks to the influence of Voltaire and Cesare Beccaria.” By this point the court stenographer declared me her eternal enemy and halted the proceedings so I could spell Cesare Beccaria for her, slowly, twice. Both the lawyers gave that special sort of “And this is why we don’t put people with Ph.D.s on juries” smiles at me, but I was satisfied to find that two other prospective jurors after me did speak up and say, “I agree with the professor, retribution isn’t deterrence.”
It is the moment of the birth of this distinction that I want to visit today. This moment addresses Jen’s questions about why medieval governments and the Church used so much violent torture, not by analyzing the Middle Ages, but by revisiting the first moment that the very questions Jen asked were asked by someone else, and thereby entered the central conversation of European thought, with real and wonderful consequences.
Some other day I will sing the praises of the Enlightenment in their full glory. For now suffice to say that the Age of Reason deserved its title. In the seventeenth century, the new philosophers, especially Descartes and Francis Bacon, had birthed the new and exciting idea that, by applying Reason and systematic analysis to things, human beings could find ways to alter them to make them more rational and better, for the good of all humankind. They saw Reason as a tool supplied by Nature and/or God to let human beings govern themselves and improve their condition, with the power to achieve anything humanity could dream of if we work carefully enough and long enough. In this spirit, intellectuals investigated engines, spinning methods, the circulation of the blood, birthing procedures, baking chemistry, light, optics, physics, and refrigeration, and discovered many new things which promised greatness, and some which were already delivering. As the eighteenth century approached, the methods which had been being applied primarily to what we might call hard sciences (with the terrifying exception of the shadowy “Beast of Malmesbury” a.k.a. Thomas Hobbes, whose fascinating infamy I hope someday to treat as I have Machiavelli’s) began with increasing frequency to be applied to other matters: government, law, justice (see Montesquieu and Locke), religion (Rousseau, Paine), and eventually crimes and punishments. If human institutions are held up for examination before the Light of Reason, claims the Method, they can be revised to be more rational and better, also better in line with Nature – with these improvements we will make a better world. It was this effort which was spearheaded by the great lights we remember: the Encyclopedia Project, Voltaire, Diderot, d’Holbach, d’Alambert, Franklin, Jefferson, and taken even further by other more chilling figures like La Mettrie and Sade.
Cesare Beccaria was from Milan, a nobleman and jurist under the Hapsburgs. He and other excited young intellectuals were enthusiastic readers of the firebrand treatises of Voltaire and others which trickled down from France. In that spirit, they set up their own intellectual circle jokingly named “L’Accademia dei pugni” (the Academy of Fists). Beccaria was interested in applying Reason’s razor to the ancient law codes he was now empowered to enforce (in the name of foreign but theoretically enlightened rulers in a conquered but civilized land). The young Beccaria, who was only 26 at the time, collaborated with Pietro and Alessandro Verri and produced, in 1764, a tiny little treatise On Crimes and Punishments. It was released anonymously, to protect its radical authors. It was thereafter translated into French where it became an immediate sensation, particularly since Voltaire, The Pen Mightier than Any Sword, embraced the treatise like a long-lost child, wrote a commentary on it, and shoved it at everyone. Though there were three minds behind the treatise, Beccaria was chosen to author it because of his flare for rhetoric. You can see it in the opening lines, which precisely express the first time someone asked Jen’s big question “Why did Europe of that era use such gruesome punishments?”:
Some remains of the laws of an ancient conquering people, compiled on the authority of a prince who reigned twelve centuries ago in Constantinople, later mingled with Lombard customs and collected in hodge-podge volumes by unofficial and obscure commentators–this is what forms the traditional opinions that in a large part of Europe are nonetheless called “law.” Moreover, it is today as pernicious as it is common that an opinion of Carpzov, an ancient custom cited by Claro, or a torture suggested with irate complacency by Farinacci, should be the laws unhesitatingly followed by those who ought to dispose of the lives and fortunes of men only with diffidence. (Young translation, Hackett, 1986)
In On Crimes and Punishments Beccaria examined the purpose of extreme punishments, thereby exposing, certainly not the only answer, but a set of answers which he then used to propose a shocking new way to think about punishment: deterrence.
Beccaria begins from the extremely Enlightenment position of considering the pleasure-pain principle the natural core of human (and animal) life. Animals, people among them, pursue happiness and flee unhappiness: pleasures including food and love but also virtue and success; pains including physical pain, deprivation, shame, and death. The purpose of a legal system is to ensure and protect a situation which will secure the most happiness for the most people. Just as a farmer must examine his methods to choose the techniques that will produce the most wheat of the best quality, so must the jurist examine his laws and punishments and choose those which will best protect and cultivate the common happiness of the people.
Beccaria follows Montesquieu, following Locke, in his political fundamentals. He believes in Laws of Nature, among them the rights to life, liberty, and pursuit of happiness. He believes that governments are instituted by a Social Contract, created by humans for mutual protection and benefit. Fearing their defenselessness in the State of Nature, early humans united together, sacrificing a small portion of their liberty to create the sovereignty of the state so it could protect them “against the private usurpations against each individual.” In this system, governments were not created by God with divine right, as was the traditional view, but they do have divine sources in that Reason and Nature are divine creations, and Reason is God’s gift to humanity to let humans protect and govern themselves. He therefore will not accept arguments that invoke religious justification against Reason, because in the dominantly Deist spirit of the Enlightenment, even an Italian Catholic believes that God is Light and Reason and therefore that if Reason and divine edicts seem to contradict there must be a mistake somewhere. Reason and religion, if both true, will always, the age believed, align. In his treatise on the small topic of crime and punishment, therefore, Beccaria sees himself contributing a footnote to preceding treatises on rational government, rational law and rational religion, Montesquieu’s Spirit of the Laws foremost among them. And by “he sees himself contributing a small footnote,” I mean in the most sweet and adorable way, as this passage sums up:
The immortal President de Montesquieu touched hastily upon this matter. Indivisible truth has compelled me to follow the shining footsteps of this great man… I shall count myself fortunate if I, as did he, can earn the secret gratitude of the little-known and peace-loving followers of reason and if I can inspire the sweet thrill with which sensitive souls respond to whoever upholds the interests of humanity! (Introduction)
And he took up this great topic with the overt intention of beginning an international dialog, inviting replies thus:
Whoever would wish to honor me with his criticisms, I repeat, should not begin, then, by supposing that I hold principles which are subversive either of virtue or of religion… But anyone who will write with the decency that becomes honorable men and with enough intelligence to free me from proving elementary principles, of whatever character he may be, will find me not so much a man eager to reply in his own defense as a peaceful friend of the truth. (Address to the Reader)
In all this, it is important to remember that, in Beccaria’s examinations of “Why do we use torture?” and “Why do we execute people?”, he does not have modern psychology in his analytic repertoire. He cannot, as we would, suggest that public executions were social catharsis, venting aggression in a controlled way, as sports would later. He cannot discuss the psychological relationship between the authority and the condemned, or talk about how sentences reinforce personal power or vent subconscious drives. He acts, as all pre-Freud thinkers do, on the belief that all human behavior is based on active, conscious decision-making. Some actions may be unexamined, i.e. based on bad logic and false conclusions, and actions based on imperfect information lead to error, but they are still based on some form of mental calculation, and the better examined they are, the more likely they are to be right. The judges enforcing the old mongrel legal code, part Roman, part Lombard, which Beccaria asks us to question, do so, in his view, in an unexamined way, falsely believing that that code is good and right in itself, or at least serves their ends. They have not examined it under the light of reason and asked what the utility is of each law and punishment. But they still decide to enforce this law code rationally, consciously, knowingly, not for hidden reasons deep in the root of the inaccessible mind.
What, Beccaria asks, is the purpose of legal punishment?
By Beccaria’s metric, all activities of the state must serve its primary function, that is, to provide the most happiness to the greatest number of citizens. This follows from the principle that the state is founded on the basis of reason for the protection and happiness of the people. Any aspect of the government, and within that of the legal system, which does not help serve this mandate to protect and distribute happiness will be rejected as irrational. All punishments, then, must serve to increase human happiness. He agrees with Montesquieu that “every punishment which does not derive from absolute necessity is tyrannical.” (ch. 2) From this he concludes three principles: (1) That only law, and not individuals with some kind of special authority, can justly impose punishments, (2) that if punishments derive from a social contract which binds all people equally, then all people equivalently bind the state equally and are entitled to the same treatment and the same punishment under the law, and (3) that excessively cruel punishments which have no benefit to public happiness have no justification and are tyrannical, and contrary to the virtue of reasoning people.
How do we determine the appropriate severity for a punishment? It should, he argues, be measured based on the harm done to the nation by the crime, and the punishment should be proportional, and focused on preventing the crime. In other words, deterrence. Ever the Enlightenment scientist, Beccaria likens self-interest to gravity, a powerful and universal force driving people toward action which can only be stopped by an opposing force. Thus when self-interest directs toward crime, that drive must be countered by an opposing one: fear of punishment. Prevention of crime, then, is the sole justification for judicial punishment in Beccaria’s analysis, not retribution, nor the at-this-point-largely-undreamed-of idea of rehabilitation.
Can the cries of a poor wretch turn back time and undo actions which have already been done?… The purpose of punishment, then, is nothing other than to dissuade the criminal from doing fresh harm… punishments and the method of inflicting them should be chosen that, mindful of the proportion between crime and punishment, will make the most effective and lasting impression on men’s minds and inflict the least torment on the body of the criminal. (ch. 12)
He does, however, review (in ch. 7) what he sees as other traditional justifications for proposing punishments, and it is here that his treatise gives us a snapshot of what one legal expert saw as the logic underlying the mass of gradually-accumulated law.
Some people, he says, have measured crimes on the basis of the dignity of the injured party (an interesting metric, and one the modern world has left far behind). Here he would be thinking of how a crime of a commoner against a nobleman is far more harshly dealt with than one against another commoner. If this is the system of logic, we can see why offenses against the Crown or against a lawful feudal lord could be punished with great severity, if they are read as injuring the Dignity, Grace, or Person of the sovereign. To use the Robin Hood example, if one hunts the king’s deer this seems like a minor injury if we see it as harming the deer, forest, or warden, but if the offense is seen as being one against the dignity and rights of the king then, by rank proportion logic, a punishment sufficient to avenge an offense against such great dignity must indeed be extreme. Yet, Beccaria argues, this type of reasoning cannot be the true metric people are using, because if so then crimes against God, i.e. blasphemy or irreverence, would be punished far more gruesomely and severely than the assassination of a monarch. Crimes against God were indeed punished very severely in his era (see the extreme examples of burning at the stake), but the assassin of a king was certainly regarded with more hatred, and executed with more gruesome creativity. In addition, actual burning at the stake for heresy or blasphemy or even witchcraft was, in the era of the Inquisition Beccaria was familiar with, exceptionally rare. Extreme cases like that of our dear Giordano Bruno did indeed end with blood and fire (a particularly visceral reality for me since he was burned alive a few paces from the apartment where I used to live in Rome). But in the Italian Inquisition such cases were rare, exceptions, usually examples brought on by some special political circumstance, and the usual sentence for blasphemy or even devil worship was being forced to sit through a bunch of boring religious re-education seminars and recite a lot of prayers (see the work of Nicholas Davidson on the Inquisition in Venice). Clearly, Beccaria concludes, the logic of the current law cannot always be that the punishment is chosen to be proportional to the dignity of the victim, but that type of thinking does seem, to him, to be an inconsistent but present factor in the thought behind the gore.
Other people, Beccaria says, have proposed that the punishment should be in proportion to the crime, i.e. “that the gravity of sin should play some part in the measurement of crimes.” In other words, that the purpose of punishment could be to achieve some kind of abstract balance or justice, righting wrongs, giving criminals their just deserts, etc. This reasoning he sees behind some aspects of the current law, and certainly it fits an eye for an eye and a life for a life, though doesn’t quite help us understand the practices of hacking off a hand for theft, or sawing a man in half from crotch to head for committing murder on a day that irritated the pope. But choosing punishments to balance the gravity of sin Beccaria says is also contrary to Reason. His argument? He asks us to look at “the relationships between men and men, and between men and God.” The former, he says, are relations of equality in which issues of common utility are primary, since those are what form the relationships between people. Thus utility, not abstract justice, should govern such relationships, and thus if punishments are to be based on relations between people, then utility, i.e. deterrence, should be the deciding factor. As for relations “between men and God,” it is here that Beccaria puts the idea of abstract, cosmic, or universal justness demanding that a crime be punished. He then argues that it is not humanity’s task to pursue universal justice.
If [God] has established eternal punishments for anyone who disobeys His omnipotence, what insect will dare to supplement divine justice? What insect will wish to avenge [wrongs against] the Being Who is sufficient unto Himself, Who cannot receive impressions of pleasure or pain from objects, and Who alone among all beings acts without being acted upon? The seriousness of sin depends upon the unfathomable malice of the human heart, and finite beings cannot know this without revelation. How, then, can a standard for punishing crimes be drawn from this? In such a case, men might punish when God forgives and forgive when God punishes. If men can be in conflict with the Almighty by offending Him, they can also be so by punishing.
It is interesting for the modern observer to note how directly Beccaria equates notions of abstract justice or balance with the idea that crimes are offenses against God. At no point in his treatise does Beccaria undertake to argue against any concept of secular universal justice. Justice is, for him, either a question of balancing individual relations between people, where utility should reign, or it is a matter of religion. Sin, with all its religious weight, is the word he chooses when discussing the idea of proportional punishment–people, he says, think punishment should balance sin, not evil, or wrong. It does not occur to Beccaria that anyone might propose a secular moral code demanding that killers get their just deserts, etc. The only secular principles he would accept are those of Nature and Reason, though for him, as for so many Enlightenment figures, these factors are far from secular in his understanding. Despite Pierre Bayle’s comparatively recent but (in)famous argument to the contrary, Beccaria is still very much thinking in the era when even such a radical as Thomas Paine believed that an atheist could not be a citizen, would not respect the law, and would never have any reason to refrain from crime.
These, then, are Beccaria’s notions of what logic lay buried under the accumulated traditions and contradictions of pre-modern European law: avenging the dignity of the injured party, and proportioning punishment to sin. He rejects both of these as irrational, saying we may justly assign punishment only when it secures public happiness. For those who have read my Machiavelli entry on the three branches of Ethics, note here how Beccaria is arguing that human relations must be analyzed using utilitarianism, confining deontology to divine questions, though one can certainly make the case that he is applying a kind of deontology of his own, using his understanding of Nature and Reason as his abstract internal laws. This kind of Reason-based deontology, closely aligned to utilitarianism, is common among those Enlightenment figures who invoke Laws of Nature, or so-called self-evident principles.
Deterrence reigns, for Beccaria, as the keyword of the day. The purpose of punishment is to discourage crime, not to achieve balance or to avenge the dignity of the injured party. From this conclusion, Beccaria then derives a set of new and original guidelines for how punishments should be selected. Among them we find the following ideas:
- Preventing crime is more valuable than punishing it.
- Punishments for crimes should be proportional to the harm done to society by the crime.
- Punishments should be as mild as they can be while still being an effective deterrent.
- Every crime offends society, but only some crimes threaten the state with destruction, and it is on the latter that laws and punishments should focus.
- Honor (the “despotism of opinion”) is not a clear and consistent moral code but a vague and blurry accumulation, hard for us to articulate and understand because it is so personal, much as an object too close to the eye is blurry and hard to focus on. Conflicts between honor, society’s self-interest, and the law have long caused strife.
- Dueling is destructive, and in punishing those who cause strife by dueling the party who caused the offense should be held culpable, not the party who challenged him to the duel who “through no fault of his own, has been constrained to defend something that the laws on the books do not assure him, that is, the opinion which others hold of him.” (ch. 10)
- Secret denunciations are more tools of calumny than justice and cause more harm than good (it was a widespread practice at the time to have boxes wherein citizens could deposit secret denunciations accusing each other of crimes, especially sodomy and blasphemy, and this was widely abused).
- The more promptly punishment follows crime, the more powerful a deterrent it will be.
- Since the criminal is doing pleasure-pain calculus, it is less important that the punishment be gruesome than that it be inescapable. The certainty of a mild punishment which is still bad enough to more than counter the benefit of the crime is more effective than a severe punishment which the criminal has a realistic hope of evading.
- Crimes against property can be punished with fines, but crimes against persons must be punished with corporal punishment (which includes imprisonment/unfreedom) because otherwise people are reduced in dignity to objects bought and sold. He targets this sentiment particularly against the wealthy, who, in his era, generally paid a fine for crimes including murder, instead of suffering personal punishment.
- Banishment is appropriate for those who have been accused of an atrocious crime which is not certain, and who cannot therefore be tolerated to remain. But the property of the banished person should not be confiscated by the state, since that is too powerful an incentive to corruption.
- Punishments should be visited on individuals, not whole families, because punishing families as a unit encourages a spirit which thinks of the family as a political unit, rather than individual citizens, and this spirit is opposed to republican sentiment. Such a system would have people think of the paterfamilias as a monarch, and make the nation see itself as ten thousand tiny monarchies instead of fifty thousand free-thinking citizens. (From modern eyes, this is a great example of a sentiment widely agreed with in the modern era, that the individual and not the family should suffer for a crime, but justified by wholly period logic not present in modern legal discourse.)
- Crimes are best prevented by combining enlightenment with liberty. The best possible preventative is perfect education.
- Crimes can also be prevented by the state awarding rewards for virtue.
And, of course, at the heart of the new ground he intends to break, ground not treated by Montesquieu in whose footsteps Beccaria so reverently treads, lies torture:
What is the purpose of torture?
One proposed purpose, he begins, again trying to puzzle out what logic lies behind the present laws so he can point out its flaws, is that torture helps secure confession and extract truth. Torture’s usefulness as a method of extracting truth had long been a key assumption of the law, so much so that under some legal systems confessions were only admissible if they were extracted under torture, since that was considered the most reliable system (see Roman policies on interrogating slaves, where torture was a necessity before the court would listen). Beccaria then makes the argument (new in his day) that pain breaks innocent people too, so torture will force false confessions from the innocent. Thus, he concludes, torture is not a reliable path to truth, so the goal of extracting information does not rationally justify the use of torture. If torture has any real utility, it must therefore be as a punishment, rather than an interrogation tool. This leads to a very novel and yet, to us, very familiar argument:
A man cannot be called ‘guilty’ before the judge has passed sentence, and society cannot withdraw its protection except when it has been determined that he has violated the contracts on the basis of which that protection was granted to him. What right, then, other than the right of force, gives a judge the power to inflict punishment on a citizen while the question of his guilt or innocence is still in doubt?
In more familiar words, innocent until proven guilty. The argument is more utilitarian than moral: techniques which secure false confession are injurious to justice and society. He further argues that torture is better for the criminal than for the innocent man, a weird but interesting argument. Torture provides the criminal the chance to say “Hey, I deserve this pain, but if I endure it they’ll acquit me and I’ll be spared worse pain,” helping him bear it, while the innocent man suffers not only torture but the despair-inducing knowledge of knowing that he suffers unjustifiably, so if he is found guilty he suffers an injustice, and if he is acquitted he still suffers unjust torture. And on the practice, common in his day, of torturing the guilty to try to force him to confess to other crimes in addition to the one he is accused of, here Beccaria dips into some of his most biting rhetoric, writing: “This is equivalent to the following line of reasoning: ‘You are guilty of one crime; hence it is possible that you are guilty of a hundred others. This doubt weighs on me, and I want to reassure myself by using my criterion of truth. The law torments you because you are guilty, because you may be guilty, because I want you to be guilty’.”
Torture cannot therefore, Beccaria concludes, be useful before conviction, and must used only after conviction, as a punishment, not a tool. But what function does it serve then? The purpose of torture could be to purge or cleanse the soul with pain. This idea is closely tied to religion, not just to Christianity but to a much broader palette of belief systems which hold that pain can discipline the body, clarify the mind, and cleanse the soul. In a broader sense (placing Beccaria’s discussion in context) Christian ideas of Purgatory and Plato’s depiction of the soul’s cleansing before reincarnation both use this idea that fire and pain can burn away past sin and also past bad moral/intellectual development, removing the weight of sin and past dark thoughts, making the soul pure, light, and open to truth. This is also reflected in monastic practices of mortification of the flesh, in the West and East. In this model, the idea is that the pain of an excruciating death is actually good for the convict by helping cleanse the soul and increasing the chances that the criminal will reform, either mending wicked ways and leading a good life thereafter, or, in the case of lethal tortures, paying for the crime before death, increasing the chance of getting into Heaven. Beccaria is so concise and articulate that it keeps being most efficient to just quote him directly:
Another ridiculous reason for torture is the purgation of infamy; that is, a man judged infamous by law must confirm his deposition with the dislocation of his bones. This abuse should not be tolerated in the eighteenth century. The underlying belief is that pain, which is a sensation, purges infamy, which is simply a moral relationship… It is not difficult to go back to the origin of this ridiculous law… This custom seems to be taken from religious and spiritual ideas which have so much influence on the thoughts of men, nations and ages. An infallible dogma assures us that the blemishes which result from human weakness and which yet have not deserved the eternal wrath of the Great Being must be purged with an incomprehensible fire. Now infamy is a civil blemish, and, since pain and fire remove spiritual and disembodied stains, will the spasms of torture not remove a civil stain, namely infamy? (Ch. 16)
In other words, he believes that the concept of Purgatory, and related beliefs that spiritual suffering purges sin and cleans the soul, led people to presume that physical suffering could purge the worldly equivalent of sin, “infamy” or criminality.
This is linked to the idea of certain crimes–mainly intellectual crimes such as heresy, blasphemy, or witchcraft–being somehow contagious, or harming the community of people who contact the criminal, either by spreading, or by inviting divine wrath which might, when punishing one sinner, withhold blessings from neighbors as well, so the plague or famine affects the whole city, doing public harm. Thus the purpose of torture could be to cleanse, not the convict, but the city or society. Here we turn naturally to the questions of heresy, blasphemy, atheism and other crimes of thought which loom ever over the populace, especially over the intellectual. This question Beccaria… evades… for now.
What is the purpose of gruesome execution? Here again torture fails Beccaria’s utility test. Beccaria argues that death is a sufficiently ultimate punishment that anyone who would not be deterred from a crime by death would not be deterred from it by death plus agony. If the sole purpose of punishment is to deter crime, heaping extra punishment on top of death counts nothing. In fact, he goes further. Over time, he argues, as gruesome executions are repeated, and seen as spectacles, the hearts of people are hardened and the torture loses its edge as a deterrent. Since fear is at the heart of deterrence, Beccaria argues that what really matters in cases of Ultimate Punishment is not the actual severity of the punishment but the fact that it be Ultimate. Whatever the severest punishment of a society is, that will command the most fear from the would-be criminal. He posits two imaginary civilizations, one having as its Ultimate Punishment some brutal and protracted death, and the other perpetual slavery. He argues that the two will be equal in how successfully they deter crime, since in both the punishment will loom in the imagination as Ultimate Punishment, instilling the same fear. An interesting theory. As for making a public spectacle of executions, he argues that this trains people to think of execution with a mixture of fear, scorn, pity and perverse enthusiasm. With moderate punishments, though, fear is the only reaction, making them more effective deterrents. “The limit that the legislator should assign to the rigor of punishment, then, seems to be the point at which the feeling of compassion begins to outweigh every other emotion in the hearts of those who witness a chastisement…” (ch. 28). One flaw in the death penalty, he says, is that it means one crime supplies only one example of punishment to the nation, while a lifetime’s hard labor may let the nation continue to see and remember the crime, criminal, and punishment, and so be deterred lifelong. This, of course, posits a system in which the populace has the opportunity to see the “enslaved” prisoner at work, and thereby be constantly reminded of the fruits of crime – Beccaria’s world is one of rock pits and chain gangs, not closed prisons which keep the imprisoned populace out of the public eye and memory.
Beccaria therefore advocates mildness of punishments, and argues against the death penalty, not because he thinks it is immoral, but because he thinks it is less useful than lifelong punishments. He also argues that it might make people suspect the law of hypocrisy, when those employed to punish homicide commit it, and that this confusion could undermine public respect for the law. Executions, he says, encourage bloodlust in the populace, and decreases, he thinks, rather than increasing, deterrance. But his argument against it is not entrenched – he is far more interested in arguing against gruesome punishments than against death, which he presents simply as a reasonable option which is not to be preferred while others are more effective. He does throw the full flower of his rhetoric into his argument against the death penalty, but not in order to move the reader’s passions to horror at how terrible it is to execute people. Instead he stresses how much everyone would rejoice and love their monarchs if the monarchs discarded the old laws and instituted new laws based on the Light of Reason. “How happy humanity would be if laws were being given to it for the first time, now that we see beneficent monarchs seated on the thrones of Europe!” (ch. 29). Today’s enlightened princes, he argues, genuinely want to make good and better laws, and in this Age of Reason they could finally strike down the old and muddled law and replace it with something rational and good, saving all humanity from the tyranny of archaic and defective law codes. He finishes this section with a sentiment very alien and unexpected to the modern reader: “If such monarchs, I say, allow ancient laws to remain, it is the result of the infinite difficulty of stripping errors of the venerable rust of many centuries. This is a reason for enlightened citizens to desire more ardently the continued increase of their authority.” In other words, he believes that the best way to eliminate torture and gruesome executions is to have an absolute authoritarian monarch, who, moved by the spirit of the Enlightenment, and empowered to rewrite law and government as he will, will make a better, more rational government. Here modern readers, raised to associate “innocent until proven guilty” and bans on “cruel and unusual punishment” with democratic anti-authoritarian sentiments, experience a moment of healthy historical whiplash.
Toward the very end, after his outline of a new ethic of punishment and his declaration of confidence in enlightened monarchy, Beccaria at last turns, timidly, to that most dangerous of issues, that is the punishment of heresy, blasphemy, atheism, etc. I say most dangerous because this is the arena which could get our author in very deep and potentially lethal political trouble. At this moment, the violence of the Wars of Religion continues to flare, fresh religious persecutions and burnings are constantly in the news, and Beccaria must be a good Catholic or risk paying a lethal price which had become more and more common as Reformation concerns spread. If the pre-Reformation Inquisition’s most common punishment for heresy was a tedious course of lectures, this deep into the age of heavily politicized religious violence it was rarely the slow and methodical inquisitors and more often the swift secular magistrates, or the mob, who burned or massacred. Beccaria is a proud, free-thinking optimist who wants to reform and improve the human condition. His heart has thrilled at Voltaire’s calls for religious tolerance, at the pro-peace “Irenist” movement that had finally let England stop massacring its citizens over the differences between transubstantiation and consubstantiation. But he is also a Milanese Catholic and knows what fate awaits he who dares wake the barely-sleeping dragon. He does not even dare name the issue he addresses in “Chapter 39: On a Particular Type of Crime“. It is single brave paragraph, which I will quote almost in its entirety, so as to give you a full taste of the artful irony and quiet grief of this intellectual forced to bridle himself, to make the mandatory profession of support for religious persecution. Yet, through the coat of lies he must paint across his message, the passion of his objection shines, clear as a star:
The reader of this work will notice that I have omitted a kind of crime which covered Europe with human blood and raised those terrible pyres where living human bodies fed the fire. It was a pleasing entertainment and an agreeable concert of the blind mob to hear the muffled, confused groans of poor wretches issuing out of vortices of black smoke–the smoke of human limbs–amid the crackling of charred bones and the sizzling of palpitating entrails. But rational men will see that the place where I live, the present age, and the matter at hand do not permit me to examine the nature of such a crime. It would take me too long and too far from my subject to prove how a perfect uniformity of thought is necessary in a state, the example of many nations to the contrary not withstanding; how opinions that differ only in a few subtle and obscure points altogether beyond human comprehension can nonetheless disturb public order if one of them is not authorized to the exclusion of the others… It would take me too long to prove that, however odious the triumph of force over human minds may seem, since the only fruits of its conquest are dissembling and, consequently, degradation; however contrary it may seem to the spirit of gentleness and brotherly love enjoined by reason and the authority we most revere; it is still necessary and indispensable… [In this treatise] I speak only of crimes that arise from human nature and from the social contract. I do not address myself to sins; their punishment, even in this world, should be governed by principles other than those of a narrow philosophy.
A sad self-portrait peeks through here. Odious force has triumphed over human minds and degraded Beccaria. He, and his partners, must dissemble. Yet the conquest is not full. He has hope still that his little treatise will be read by kindred spirits, by those “sensitive souls [who] respond to whoever upholds the interests of humanity,” by those fellow readers of Locke and Montesquieu who will read between the lines and recognize him as a “peaceful friend of the truth.” His hope is not in vain.
What were the consequences of young Beccaria’s little treatise On Crimes and Punishments?
It spread like wildfire. There it penetrated the salon culture whose radical intellectual experiments had inspired Beccaria’s Accademia dei pugni. And it reached Voltaire. Voltaire, who exercised literally unprecedented influence, as a new age saturated with printing houses made it possible for the first time for an independent intellectual to support himself, and see that his ideas reached every corner of literate Europe with unheard-of speed. Voltaire, whose wit and incisiveness made everyone who could sit up and listen, not only intellectuals but the great public he entertained. Voltaire, who had just come through the terrible crisis of the Lisbon Earthquake, the death of his beloved Emilie, and in Candide (1759) proclaimed his conviction that it is the duty of a thinking person to cultivate the human garden. This moment began the latter stage of Voltaire’s career, when he moved from popularizing Enlightenment ideals to direct political activism. He campaigned against religious violence and judicial murder. He spoke out against particular cases and trials and fired France with outrage and calls for reform. And he made sure everyone read Beccaria.
And it worked.
Rarely in the history of thought do I have a chance to say the outcome was so simply good, but it worked. Within their lifetimes, Voltaire and Beccaria saw real reform, a sincere and solid transformation of the legal codes of most of Europe, the spread of deterrence-based justicial thought. Within decades, judicial torture virtually vanished from European law. The laws of America, and of the other new constitutions drafted in the latter 18th century, all show the touch of Beccaria’s call. It worked. The change was not absolute, of course. Torture, the primary target, retreated, as did the notions of retributive justice, avenging dignity, and purging sin. But prisons were still squalid, punishments severe, and other things Beccaria had campaigned against remained, capital punishment primary among them. But even here there was what Beccaria would call progress. The guillotine lives in infamy, but it too was a consequence of this call for enlightened justice: a quick, egalitarian execution, death with the least possible suffering, and equal for all, giving no advantage to the noble, who had long been able to hire an expert and humane headsman while the poor man suffered the clumsy hackings of an amateur who might take many blows to sever a writhing neck. Most states judged death still necessary, but agreed that law and punishment should bind all men equally, and that unnecessary pain did not serve the public good. It is strange to call the guillotine a happy ending, but it was in a small way, and even more victorious was the dialog that birthed it. The first country to ever abolish the death penalty was the Duchy of Tuscany, which did so on Beccaria’s utilitarian grounds rather than principle (Hey, look, Machiavelli! Your new branch of ethics, flourishing in Florence!).
Between them, Beccaria and Voltaire made people think seriously and critically about the tortures which had been employed so long without consideration of their purpose. Beccaria asked people to ask themselves why we use torture, and the reading public did just that. Judges examined the questions, jurists, even kings. And they did change things. Even the sad and careful chapter about “a particular type of crime” had its impact. After all, in the eighteenth century so many carried the torches of reform that even among the magistrates and priests and censors whose job it was to suppress threats to the status quo, many were secret sympathizers, in favor of the changes they were employed to slow, and willing to read Beccaria’s chapter “on a particular type of crime” and realize (as we can’t fail to) his true meaning, but give it the stamp of approval anyway, and hope wholeheartedly that it would do some good. It did. Not universal good, not perfect. It needed a next step, and there were many atrocities it did not manage to prevent, especially in the colonial world. But it did real good nonetheless. The days of European governments and Churches sawing men in half gave way. And when later on there were movements to reduce violence against slaves and conquered peoples, these too owe some thanks to the 26-year-old jurist from Milan who turned his friends’ idealistic ambition into such potent prose.
The target of Beccaria’s treatise was not torture itself, nor the death penalty, nor even the concept of retributive justice. His target was the unquestioning acceptance with which his age enforced the mass of traditional opinions which was then called “law.” We have not eliminated torture from the world, but, in the nations touched by the Enlightenment at least, that unquestioning acceptance of old laws has been conquered. We still have much to fix, many more steps to take in the footsteps of Voltaire and Montesquieu, but if, when I turn up for small town jury duty, the defense attorney begins by asking the jurors our opinions about the purpose of punishment, then, even if he blurs deterrence and retribution, even if the court stenographer doesn’t know how to spell Beccaria’s name, Beccaria is present in the conversation, and the fact that there is a conversation is his victory. And ours.
But Voltaire and I still agree: everyone go read Beccaria!