Outline:

Beccaria's Argument in
On Crimes on Punishments

---

Part I.  The Rational Foundations of Law

 

A. HUMAN NATURE

Beccaria bases his argument on an assumption about human nature . . .

1. People are selfish & pursue their self-interest; they want to avoid pain and increase their happiness. [1,2,6]
   
   

2. People are rational, capable of calculating what is really in their self-interest, and therefore can be considered to be free.   [1,2]

B. THE SOCIAL CONTRACT

1. If people lived without government, their interests would conflict and their lives be that of perpetual war. There would be no security and hence little happiness.
   
   

2. Therefore, people agree to give up some of their freedom for the sake of their overall security and happiness. That is, they make promises not to do some activities and to do others.  These promises are their laws.

"Laws are the terms under which independent and isolated men come together in society. Wearied by living in an unending state of war and by a freedom rendered useless by their uncertainty of retaining it, they sacrifice a part of that freedom in order to enjoy what remains in security and calm." [1]

Click here to examine the social contract argument in more detail!

C.  GOVERNMENT

"The sum of these portions of freedom sacrificed to the good of all makes up the sovereignty of the nation, and the sovereign is the legitimate repository and administrator of these freedoms." [1]

1. The sovereign (the government) can now conceived as the "sum" of these individual promises. That is, the people have created the government to defend their mutual promises by laws and punishments; the government is thus legitimated by the people.
   
   

2. Though the government is legitimated, it cannot do whatever it pleases; it is also limited by the social contract. Beccaria argues that people want as much freedom as possible, and have only agreed to give up as much freedom as was necessary for their security. Hence the government, in protecting their security, can infringe on their freedom only as much as necessary.
   
   

3. But how much is necessary? Because the government was created out of the individual’s quest for security and happiness, the government’s aim should be that of "common utility": to pursue "the greatest happiness shared among the greatest number." [Introduction, 7]

". . . it was 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. . . by ‘justice’ I mean nothing other than the restraint necessary to hold particular interests together . . ." [2]

D. LAWS

Thinking of government as a social contract allows Beccaria to shift the power of the state away from the traditional authorities of the sovereign and the church, to the legislator—the people’s representative and the maker of rational laws.

1. Laws bind all members of society equally: [3]

—Law is blind to rank or class; [7]
—Punishments are the same for the highest as for the lowest in society. [21]

2. Laws define crime as a breach of the social contract [7]

—Only actions—not intentions—determines one’s punishment. [7]
—Only the State—not private individuals—has the right to punish. [29]

"The one true measure of criminality is the damage done to the nation." [7]

3. Laws—not judges—determine punishments: [3]

—Laws are fixed; Judges can only apply, not interpret, the laws. [4]
—Judges cannot judge morality, but only judge breaches of the social contract. [29]
—See [17] for an account of past judicial abuse.

4. Natural rights (human rights prior to laws) can be distinguished from social rights
    created by laws: [30,38]

—Banishment is "social death"—the death of the citizen:   "the citizen dies and the man remains;" [24]
—But the death penalty violates one’s natural rights, and thus is not legitimated by the
   social contract. [28]

Part II.  Preventative Punishments

E.  Punishment

1. Punishments are necessary because of human selfishness; we would seek to break the social contract if it was in our self-interest to do so. (Note that for Beccaria, anyone is capable of criminal behavior.)

". . . each individual . . . is always seeking to extract from the repository not only his own due but also the portions which are owing to others." [1]

"If it were possible, each one of us would wish that the contracts which bind others did not bind us. Every man makes himself the centre of all the world’s affairs." [2]

2. Therefore punishments should not deny human selfishness, but supply "motives" to make it in our self-interest not to break the law. [1]

3. Punishment, then, is preventative. As such, it should be guided by the idea of deterrence: [12]

—Specific deterrence: punishing an individual offender to prevent her from repeating her act;
—General deterrence: punishing an offender as an example to the rest of society.

"The purpose [of punishment], therefore, is nothing other than to prevent the offender from doing fresh harm to his fellows and to deter others from doing likewise." [12]

4. Deterrence depends on two conditions:

*  The punishment must be proportional to the crime.
*  The public must have clear and certain knowledge of the punishment.

1. The punishment should "fit" the crime. [6,28]

Crime :: Punishment

"The force which attracts us, like gravity, to our own good can be controlled only by equal and opposite obstacles. . . .the legislator behaves like the skilled architect, whose task is to counteract the destructive forces of gravity and to exploit those forces that contribute to the strengthening of the building." [6]

2. The punishment should not be excessively harsher than the crime.

 

Crime :: Punishment

(a) By the social contract, the state doesn’t have the right to punish any more than is needed. [2,3]

"Any punishment that goes beyond the need to preserve this bond [of contract] is unjust by its very nature." [2]

(b) Excessive punishments encourage crime. By making minor and serious crimes equally punishable, unequal punishments make it in the interests of would-be offenders to commit the more serious offenses. [6]

"The inappropriate distribution of punishments will give rise to that paradox . . . that the punishments punish the crimes they have caused. If an equal punishment is laid down for two crimes which damage society unequally, men will not have a stronger deterrent against committing the greater crime if they find it more advantageous to do so." [6]

But punishments cannot deter unless they are known by us! Beccaria’s ideas about effective punishments thus depends on his understanding of knowledge: how he thinks people come to associate in their minds the "punishment" with the "crime":

Punishments ". . . impress themselves directly on the senses and which, by dint of repetition, are constantly present in the mind as a counterbalance to the strong impressions of those self-interested passions. . ." [1]

If punishments are to be as strong as our feelings of self-interest, they must always be on our minds. Thus offenders should be made public examples; punishments ". . . selected to make the most lasting impression on the minds of men." [12]

1. Punishments should be swift, so that the public easily associates the punishment with the crime. [19,30]

". . . the smaller the lapse of time between the misdeed and the punishment, the stronger and more lasting the association in the human mind between the ideas crime and punishment. The former will come to be sensed as the cause and the latter as the necessary, inexorable effect." [19]

2. Punishments should symbolically fit the nature of the crime, in order to "ease the comparison which ought to exist between the incentive to crime and the retribution of punishment." [19]

3. Punishments should be certain. [19, 47]

". . . the certainty of even a mild punishment will make a bigger impression than the fear of a more awful one . . . united to a hope of not being punished at all." [27]

4. Laws and punishments must be public and visible.

—The printing press gives the public access to the laws; "a stable reminder of the social contract." [5]
—Punishments, especially of minor crimes, must be visible to frighten others [29]; for greater crimes, Beccaria advocates penal servitude/public works. [28]

 

Bruce Hoffman
Department of Sociology
Ohio University

For biographic information and further bibliographic references about Beccaria, consult Richard Bellamy’s Introduction to the Cambridge edition of On Crimes and Punishments, and, in particular, the text and notes to Beirne’s article in his Inventing Criminology.

Further References