The ‘Beccaria moment’: revisiting the origins of the modern penal system

Published anonymously in Livorno in July 1764, Cesare Beccaria’s On Crimes and Punishments is at the origin of a remarkable moment in European culture. Translations and commentaries appeared instantly in several languages, and this brief work of some 100 pages gave rise to what Michel Porret has called the ‘Beccaria moment’,[1] referring to the period of intense debate that led to the whole European tradition of penal law being called into question, culminating less than fifty years later in France with the promulgation in 1810 of the Napoleonic Code pénal.

A new book, Le moment Beccaria: naissance du droit pénal moderne, 1764-1810, edited by Philippe Audegean and Luigi Delia (Oxford University Studies in the Enlightenment, 2018) allows us to revisit this ‘moment’.

The shock wave caused by On Crimes and Punishments

Persuaded that ‘knowledge is the pre-condition of enlightened consent to the laws, that itself is the condition of liberty’ (Audegean[2]), Beccaria makes his text accessible to a wide readership. He rejects the use of Latin, and emphasises clarity and concision. He brings together, to quote his first French translator André Morellet, ‘the strength of reason and the warmth of feeling’.[3] In so doing, criminal law – which had hitherto remained the private and confidential domain of the legal profession – becomes a public affair. The ‘Milan school’ and the group around the journal Il Caffé (1764-1766) that includes Beccaria have as their declared aim, to quote Pietro Verri, to dispel ‘the fog and mystery that allowed the select few to act with impunity while the greater number remained in misery’.[4]

Allegory of Justice refusing to receive some heads from the hand of a man with a sword, illustration from C. Beccaria, Dei delitti e delle pene. Edizione sesta di nuovo corretta ed accresciuta, Harlem [Paris?], 1766. Public domain. Source: http://gutenberg.beic.it.

The aim of On Crimes and Punishments is to modernise penal law by establishing it on clear, secular, moderate foundations, so as to fight against the abuses of justice: torture, the scaffold, extreme corporal punishment, the confusion between crime and sin, the arbitrariness of the judiciary, the slowness and secrecy of trials. Penal law is to be brought in line with a sense of legality as defined by the social contract, liberty and the equality of man. This revolution, which established the foundations of the constitutional state, causes a shock wave in Europe of unseen proportions.

To speak of the ‘Beccaria moment’ is therefore to recognise that the origins of modern criminal law are to be found not just in the modest pages of the Milanese thinker but in the hundreds of texts and speeches that his pages inspired in the following decades, from Voltaire’s Commentaire and the issuing of the Nakaz by Catherine the Great (1767) to the abolition of the death penalty in Tuscany (1786) and the criminal laws of the young American nation drawn up by Thomas Jefferson, George Washington and John Adams, from the first French penal code of 1791, the product of debates among the Constituants in which the name most often cited was Beccaria’s, to the Napoleonic code and the work of Jeremy Bentham (1748-1832). But the ‘Beccaria moment’ continues in Victor Hugo’s campaign of 1848 to abolish the death penalty, or, closer to our times, in 1981, in the actions of Robert Badinter.

To understand the sources of modern criminal law means taking into account both Beccaria’s book and its interpretations – in Germany, England, France and Italy – thanks to which a new legal structure gradually emerged, and new principles of punishment meant that the legality of punishments replaced the arbitrary power of the courts.

A ‘moment’ that remains modern

Beccaria’s modernity lies in his having reconceived the problem of punishment in the framework of a new conception of politics born in the Enlightenment period and which is still our own: a framework in which the state’s authority is subjugated to the laws protecting individuals. Criminal law is no longer the royal instrument used by the sovereign to guarantee his strength and establish social order, but rather the instrument of citizens to protect and uphold their liberty and safety against public or private violence.

It follows, as the authors show here, that ‘the power to punish is revealed in all its tragic ambiguity’,[5] since it may be necessary, in order to protect citizens from violations that threaten them, to violate the liberty of others and to threaten their dignity and their physical integrity. How to protect ourselves against the excesses and extremes of the laws that protect us? This book demonstrates, if it were necessary, that the ‘Beccaria moment’ remains relevant, and it reminds us of the need today to rethink the principles of the Milanese writer so as to better understand in particular the modern tension between the principles of security and liberal values. It invites us to think about the problems raised by the widespread preventive surveillance of individuals in the name of the ‘security of the state’ at a time when new radical forms of criminality are emerging.

Title page of the original edition of the Napoleonic code of 1810. Public domain.

The ‘Beccaria moment’ of 1764 has clearly passed, yet its aspirations represent unfinished business. In the same way that between the end of the eighteenth century and the beginning of the nineteenth, public debate opened up to problems that had not been envisaged by the author of On Crimes and Punishments – in particular the emergence of a new prison regime – his book throws a light today on the present evolution of criminal law, which since the Enlightenment has been a founding and defining element of social order and our institutions. In 2015, Michel Porret elegantly summed up the problem:

As an Enlightened Utopian, Beccaria dreamed of a just city, regulated by constrained force, since excessive punishments encourage brutality in social behaviour […]. Speaking in the language and culture of his times, Beccaria paves the way for the eventual abolition of capital punishment. Today this humane project is enshrined in European democracies. So at a time when certain European gaols resemble more and more the prison hell deplored by John Howard at the end of the eighteenth century, and when populism sees an ethnic element in criminality, fosters social vindictiveness, and in general questions the Enlightenment legal heritage, condemning the State’s role to heal and urging punitive excess in response to problems of security, the generous words of the Italian thinker remain immensely relevant. As if we were still living in the Beccaria moment inaugurated in 1764.[6]

On Friday 12 October 2018, I am pleased to be organising at the École normale supérieure in Paris a round table debate devoted to the book edited by Philippe Audegean and Luigi Delia, in the presence of the authors/editors. Also participating in the discussion are Italo Birocchi (professor of the history of medieval and modern law at the University of  Rome La Sapienza), Manuela Albertone (professor of modern history at the University of Turin), and Denis Baranger (professor of public law at the University of Paris II Panthéon-Assas and deputy director of the Institut Michel Villey).

– Pierre Musitelli, École normale supérieure, Paris
Translated by Nicholas Cronk

[1] Michel Porret, Beccaria: le droit de punir, Paris, Michalon, 2003, p. 116; and Michel Porret and Élisabeth Salvi (eds.), Cesare Beccaria. La controverse pénale, XVIIIe-XXIe siècle, Presses universitaires de Rennes, 2015, ‘Introduction. Le moment Beccaria’, p.15-38.

[2] C. Beccaria, Des délits et des peines, translation by Philippe Audegean, Lyon, ENS Éditions, 2009, p.398.

[3] [C. Beccaria], Traité des délits et des peines, traduit de l’italien [1765], ‘Préface du traducteur’, p.VIII.

[4] Il Caffè, t.I, foglio V, Torino, Bollati Boringhieri, 1998, p.56.

[5] Philippe Audegean and Luigi Delia (eds.), Le moment Beccaria. Naissance du droit pénal moderne (1764-1810), Oxford University Studies in the Enlightenment, 2018, introduction, p.4.

[6] Cesare Beccaria. La controverse pénale, p.37-38.

The above post is reblogged from Liverpool University Press.

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Green Wigs? Ecology and the Long Eighteenth Century

Elizabeth Blackwell, ‘The Clove, Carophyllus aromaticus’. Plate 338 from volume 2 of Blackwell’s A Curious Herbal, Containing Five Hundred Cuts, of the Most Useful Plants (London, 1739). (Historic Maps Collection, Dept. of Rare Books & Special Collections, Princeton University Library.)

Without a doubt, the Restoration era always exceeds students’ expectations. Students arrive with images in their heads of powdered wigs and royal ceremonies; they leave savoring the frankness, liveliness, and relevance of playwrights Aphra Behn, Susan Centlivre, George Farquhar, and John Dryden (All of Love and Amphitryon especially). Generic expectations circumscribe and limit.  But as Dryden describes, poets capture an idea or image in language and activate the senses their readers, creating a pulsating conduit between them and the objects represented. Dryden insists that his aesthetic forms, in his case heroic drama, initially obtrusive, merge with what he depicts. In the period after the Restoration of Charles II to the English throne, the ‘care and labour of Rhyme is carry’d from us, or at least drown’d in its own sweetness, as Bees are sometimes bury’d in their Honey.’ Literary forms serve as porous borders that foster interaction and vibrancy, melting into the things they represent once this exchange has been activated.

How did literature overcome what had become stale Renaissance constructs and respond to contact and exchange across the Americas, Africa, and Asia? The premise of Nature and the New Science is that natural systems shape poetry, philosophy, geography, and politics. After the era I define, writers increasingly fix nature as something to be sought rather than always and everywhere an ambient condition of human life. But from 1665-1726, nature operated as the medium through which the British sought the unknown, interpreted contact with others abroad, and allowed them to explore the self and adapt to new political and economic realities.

Because so many aspects that define our contemporary world took root in the period, the study of the long eighteenth century remains paramount to understanding seemingly intractable problems as well as institutions we’ve grown to cherish. A few examples include: Western conceptions of the East, global interdependencies, the lives of servants and women, treatment of indigenous people, and the (still) undervalued contributions of women writers. We often characterize the era as charting the ‘rise’ of large-scale processes – the rise of the nation-state; the rise of the novel; the rise of the modern subject; the rise of democratic republicanism, the rise of capitalist economies – obscuring the originary conditions of these movements. In this book I am concerned with the literature that remains in dialogue with various processes, phenomena, places, and beings.

Various initiatives encourage cross-fertilization across academia, governmental organizations, and industry. My own university is in the process of uniting its Colleges of Arts and Sciences into one unit, giving me the opportunity to create interdisciplinary classes like ‘The Literature, History, and Science of Spaceflight’.  The period under discussion can serve as the lingua franca, enabling increased dialogue among academic units. It is a commonplace to point out that in the late seventeenth and early eighteenth century disciplinary silos were nonexistent, but what remains understudied is how different areas of study remain tethered, how they need one another to define themselves.

I should know. Earning degrees in both Aerospace Engineering and English and working at the Laboratory for Atmospheric and Space Physics at CU-Boulder and, later, at Stanford University on satellites called QuickSCAT and Gravity Probe B, I viewed engineering and English as complementary disciplines. Likewise, the ‘New Science’, which emerged in the seventeenth century, promised to illuminate natural phenomena through the use of reason and special instruments, encouraging detailed inquiries into physical systems. The methodology resembles the practice of close reading a literary text: life appears when one appreciates the minutia. At the same time, the practitioners of the New Science recognized the object of study was inseparable from the device through which one grasped it, as did those who sought innovation in poetic form.

Lady Mary Wortley Montagu.

While receptivity to their surroundings unites the authors studied here from Margaret Cavendish and Milton to Lady Mary Wortley Montagu and Daniel Defoe, the book observes a gradual diminishment in the writers’ attunement to natural processes as a means to discernment. They succumb instead to constructs of national identities characterized by borders and attendant socio-economic systems. Behn, for instance, ties technology to its capacity to intertwine people and sites rather than displace them, and for Dryden, the kinship between the English and nature enabled circum-oceanic travel. But by the end of the period I trace, only auditory sensations (the haunting cries of animals) remind Robinson Crusoe of vestigial affiliations among all beings.

In the Anthropocene, we struggle with the effects of how human activity changed the climate and environment. Conceptualizing the world through natural systems will not directly reverse rising oceans and carbon dioxide levels. The literature from the period, however, remains vital in that it reminds us that we cannot compartmentalize environmental degradation. It links human and natural systems, helping to perceive this crisis and to reconcile the separation between the two that led to it.

– Denys Van Renen

The above post is reblogged from Liverpool University Press. The author, Denys Van Renen, is Associate Professor of English at the University of Nebraska at Kearney. He is the author of ‘The Other Exchange: Women, Servants, and the Urban Underclass in Early Modern England’ and co-editor of ‘Beyond 1776’. He has a critical edition of Dorothy Wordsworth’s journals forthcoming.