Conclusions

The utilitarian and contractarian components of Beccaria’s thought constitute the modernity of his approach to the formulation of his theory of punishment. Beccaria avoids the temptation to utilize a purely utilitarian approach in his treatment of crime and punishment.

Beccaria’s work is attentive to the sensitivity of the audience of his time and guides the reader through difficult steps in order to unveil the reasonable­ness of utilitarian principles in criminal law. In this respect, his work has been likened to the work of contemporary philosophers such as John Rawls and H.L.A. Hart, where the hypothetical or real contractarian origin of law and legislation legitimize utilitarian choices.

Beccaria perceptively unveils the shortcomings of retributive theories of punishment. Such theories are retrospective and are aimed primarily at im­posing pain on the wrongdoer in proportion to their guilt and the gravity of their offence. Retributive theories of punishment are not acceptable by utili­tarian standards and are not likely to be met with a contractarian justification. Retribution conceives punishment as a way to undo the harm, in a context where no harm can effectively be undone.

On the contrary, Beccaria argues for the appropriateness of utilitarian the­ories of punishment. Utilitarianism is prospective in its approach. Punishment is imposed on the wrongdoer to prevent future crimes, not to recompense society for its loss. Crimes can be prevented by rendering criminal behaviour less attractive to potential wrongdoers, and punishments should be chosen in order to achieve the optimal level of deterrence. Beccaria, however, was well aware of the limits of utilitarian theories in criminal law.

The utilitarian and contractarian foundations of Beccaria’s theory of pun­ishment further contributed to the formulation of a theory of division of powers in the context of criminal law. In addressing the respective functions of courts and legislators, he appears to endorse the adoption of purely utili­tarian criteria in the drafting of criminal rules, allowing for some retributive consideration by judges who have more direct information on the particulars of the cases.

Finally, Beccaria’s utilitarianism resists any paternalistic temptation. If the purpose of criminal laws - and of laws in general - is to deter wrongdoing, then they should contain a negative, rather than positive, command. His warning against paternalistic legislation is most explicit:

Everything that is publicly useful does not need to be directly commanded, al­though one should prohibit everything that is harmful. Therefore, all laws that restrict the personal liberty of men have their limit and rule in necessity; and the laws that aim solely at positive utility must restrict personal liberty.¹⁰

In sum, according to Beccaria legal prescription should only specify what individuals cannot do, rather than attempt to guide human choices. The law should mark the confines between legitimate and illegitimate choices, dis­couraging the latter through criminal punishment. The search for happiness will motivate human action in the remaining cases and no legal intervention should influence such human choices. In this respect, Beccaria’s work is in perfect harmony with the thought of his British contemporary Adam Smith and the inspirations provided by the earlier work of Bernard Mandeville.

Notes

1. For an assessment of the impact of Cesare Beccaria on the American law and economics approach to criminal law, see, F.

2. The standard English translation of the work is Cesare Beccaria, On Crimes and Punish­ments and Other Writings, Richard Bellamy (ed.), translated by Richard Davies (with Virginia Cox and Richard Bellamy) (Cambridge: Cambridge University Press, 1995).

3. Bellamy (ibid., p. xviii), observes that ‘Beccaria employed the ideas of a social contract more as a theoretical device for setting limits to the legitimacy of law than as an actual historical act to explain its origins’.

4. It should be noted that the first English translation of Beccaria’s book wrongly translated his notion of social welfare with the use of words ‘the greatest happiness of the greatest number’. The phrase is now generally used to identify the so-called Benthamite criterion of social welfare, which served as Bentham’s primary purpose for legislation. Ironically, Bentham took inspiration from Beccaria relying on a mistaken translation. As Richard Bellamy, the editor of Beccaria’s standard English translation, recently observed ‘in spite of the fact that all subsequent English translators have continued to attribute it to Beccaria, the Italian never employed the phrase.

5. According to Bellamy, supra, note 2, Beccaria’s definition of welfare offers a poor guide to the understanding of his philosophy on the point: ‘The notion of division might suggest that he had in mind average as opposed to aggregate utility, whilst the use of the compara­tive (maggior) instead of the superlative (massima) potentially indicates that he might have meant “the greatest happiness of the majority” rather than of the “largest number”’.

6. Even when Beccaria appears concerned about the fair division of welfare among the members of society, he conceives no tradeoff between the two dimensions of the problem.

7. For a brief economic analysis by Cesare Beccaria of contraband and customs duties, see: Scrittori classici italiani di economica politic a (Classical Italian writers of economic policy), Milan 1804, XII, 237, 241.

8. The quotations are taken from the integral work edited by the ‘Biblioteca universale’, Sonzogno, 1884.

9. See, Bellamy, supra, note 2, at 16.

10. Cesare Beccaria, ‘Reflections on manners and customs’, translation of Beccaria’s Scritti filosofici e letterari in Cesare Beccaria, On Crimes and Punishments and Other Writings (1995), Richard Bellamy (ed.).

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