1.2 Cesare Beccaria

We have seen a tension in Bentham's account between his utilitarianism and his very tentative and implicit acknowledgment of the demands of right or justice. This tension also surfaces in the work of another classic theorist of punishment, Cesare Beccaria. Beccaria is not properly called a utilitarian, for he does not appeal systematically to some principle of utility, as does Bentham. But in his famous work An Essay on Crimes and Punishments , Beccaria justifies legal punishment, and also its limits, by appealing to the idea of social utility.^[38] Beccaria combines elements of both rights-based and utilitarian

[37] Ibid., ch. 15, section 2.

[38] Cesare Bonesana Beccaria, An Essay on Crimes and Punishments (Philadelphia: William P. Farrand and Co., 1809). Beccaria's book was important for its plea for humanity in punishment and for its opposition to the death penalty.

theories. Like Hobbes, Beccaria argues that the natural condition of man is a continual state of war, and to escape it we sacrifice part of our liberty in order to enjoy the rest in peace and security; this reservoir of liberty has to be defended, and punishment is the means. Punishment is necessary to restrain passions and preserve our lives.^[39] Armed with this principle that we punish to preserve the safety of society, Beccaria goes on to ask of all occasions on which we consider whether to punish, whether punishing is reay useful or necessary for the safety or good order of society.^[40] As for Bentham, for Beccaria punishment is an evil, and we are to use it only when the principle of social utility dictates that we should:

The degree of the punishment, and the consequence of a crime, ought to be so contrived as to have the greatest possible effect on others, with the least possible pain to the delinquent—for mankind, by their union, originally intended to subject themselves to the least evils possible.^[41]

Beccaria gives essentially a deterrent theory of punishment: the intent of punishment is not to torment or to undo past crime, but to deter future injury to society, and punishment ought to be chosen to maximize its deterrent effeect.^[42]

But Beccaria's utilitarianism is combined with his rights-based social-contract theory. Beccaria argues that men give up some of their natural liberty and agree to obey the laws and be punished for violating them, only because doing so is necessary to prevent a state of war.^[43] Beccaria objects to the death penalty by appealing to his rights-based theory: the sovereign has no right to impose the death penalty, because we never gave to others the right of taking away our lives—in agreeing to the social contract, we each sacrificed only a small

[39] Ibid., chs. 1, 4.

[40] Ibid., ch. 11.

[41] Ibid., ch. 19.

[42] Ibid., ch. 12.

[43] Ibid., ch. 2.

portion of liberty to the public good. Beccaria, however, also appeals to principles of utility in opposing the death penalty. arguing, for example, that the death penalty does not deter.^[44] Hobbes had similarly said that we can never be understood to lay down our right to defend our lives or to resist being wounded, chained, or imprisoned.^[45] Hobbes, however, does not argue that the sovereign has no right to punish; his sovereign may do what he pleases, even punish an innocent person without this being an injustice.^[46] Hobbes argues, rather, that the sovereign may with right execute me, but I retain the right to try to escape. Unlike Hobbes, Beccaria is not content with declaring the right of the convicted person to try to flee from the executioner, leaving the prisoner a corpse with rights. Beccaria, as we have seen, gives other reasons in arguing against state execution.

Both Bentham and Beccaria justify legal punishment by appealing to some principle of social utility. Both recognize, implicitly or explicitly, limits to their justificatory principle. Bentham implicitly acknowledges that we may justly punish only for a mischievous offense; and Beccaria argues that we may punish only in a way that does not violate the individual rights we carry with us into civil society.