Introduction
As the subject for the opening chapter of this collection, Cesare Beccaria is a fitting choice. Not only is Beccariaâs Dei delitti e delle pene [On Crimes and Punishments] a foundational text in classical criminology, which has received and continues to receive much attention, but significantly, he also calls us to focus on the need for changing entryways to criminal justice. This chapter will briefly allude to wellâtrodden discussions of Beccariaâs work on rationalizing criminal justice terrains and calling for enlightened reforms of the contemporary penal institutions he examined. However, our aim is to highlight an overlooked, yet equally influential, contribution. Specifically, we argue that not only did Beccariaâs work offer an influential appeal for reasonâbased public codes, criminal trials, and penal practices, but that it also called for political transformations at gateways to criminal justice arenas. That is, his work may also be read as advocating for publicly accessible, rationalized ways to accuse subjects of crime and so provide just gateways that decide which subjects at entryways ought to be admitted to criminalizing fora. In turn, his reforms imply that opening moments that lead to the creation of criminal subjects indicate a sovereignty politics with important consequences for modern state formations (Pavlich, 2000).
The focus of much scholarship surrounding Beccaria has centered on a variety of implications that attended to his attempts to rationalize criminal law, and his utilitarian justifications for the punishment of crimes (Ferrajoli, 2014). As is well known, he criticized and called for fundamental alterations to the arbitrary, cruel, secret, and discretionary processes of medieval criminalization. He strongly advocated for a system of penal laws that were public, reasonâbased, consistent, universal, nonâdiscretionary, clear, and based neither on vengeance nor reprisal. These laws were to be codified and founded on principles of the public good and reason. As is well known, he developed these ideas at various levels. For example, he offered a philosophical and socioâpolitical analysis of the ways that a rational and minimalist image of criminal law and punishment should only be used to bring about a humane, just, and free social compact.
On this view, as Foucault has shown, Beccariaâs and Benthamâs writings took different trajectories and had different implications. Most important for our discussion, is that Beccaria sought to reframe, lessen, and rationalize the criminal justice system whereas Bentham sought to mine insights derived from the panopticon to help develop a disciplinary society (Foucault, 1977). He also developed a different conception of positive law from the one expressed by Bentham as
Where Bentham might be seen to understand that the law is given and enforced by the sovereign, several passages from On Crimes and Punishments suggest that, for Beccaria, the sovereign should be assumed as metonymic of law and state. At the same time, he felt that the foundation of law cannot derive from tradition, superstition, religion, or the discretion of judges or the vagaries of the sovereign. By contrast, Beccaria promoted a form of law based on a kind of metaphysics of rationality that provides images and statements about human nature and the ideal society. Therefore, it is perhaps useful to heed Garlandâs (1985) assessment of Beccaria, Voltaire, Bentham, and Blackstone less as classical âcriminologistsâ but more as legal scholars who applied the foundations of âlegal jurisprudence to the realm of crime and punishmentâ (p. 14). In this light, Beccaria emerges not only as a legal philosopher, but also as a kind of activist concerned with recalibrating procedures, techniques, and apparatuses that bring people into the criminal justice system that necessarily frames the relationships between citizen and state.
On the latter, he provided hardâhitting critiques of specific penal and criminalizing practices of his time. He also offered many specific ideas of how criminal justice might be recalibrated, from the already noted calls for clear public criminal codes and the removal of judicial discretion, to education, crime prevention, swift and certain punishment that was rationally calibrated as proportionate to the atrocity of specific crimes, and so on. Throughout, it is worth noting, he championed compassion and argued that to ensure that
Regardless, at all these levels, Beccariaâs relatively small text provided a trenchant call for reformist action that resonated throughout Europe, Russia, the USA and across many intellectual traditions and times (Bessler, 2009; Draper, 2000; Harcourt, 2013; Massaro, 1991). Indeed, Harcourt (2013) describes how Beccariaâs influence extended outwards in many directions and served as
As influential as his Of Crimes and Punishment most certainly has been, we would argue that not all of its achievements have been recounted. In this chapter we will reinterpret relatively overlooked aspects of this work to highlight one element of Beccariaâs thinking: his call for rational and just reforms to entryways that determine admission to criminal justice. Stated more pointedly, we interpret Beccaria, in responding critically to the context that he faced, as seeking to restructure the discretionary, secret, spurious, irrational, tyrannical, arbitrary, and sovereignly ordered gateways wherein people were then accused of crimes and potentially entered into criminal justice arenas. Our aims here are first to situate his thinking as it pertains to such entryways before pointing to the kinds of reforms that his text seems implicitly to call for. Thereafter, we look at various political rationales that he provided for such reforms, before alluding briefly, by way of conclusion, to the political implications of our interpretative recovery.
Historical Context and Reception: Of Crimes and Punishment
A few years prior to writing his text, Beccaria had met Pietro and Alessandro Verri, Milanese brothers, and together they later formed Accademia dei Pugni or the Academy of Fistsâa collection of Milanese intellectual elites who had tried to bring Enlightenment ideas to Italy, emphasizing how crime and punishment might be reconceptualized. More broadly, these elitesâthe âMilanese illuminisiââsought to create
The Academy of Fists was vital for Beccariaâs formation as a âlegal scholarâ through its at times heated philosophical debates inspired by the likes of Bacon, Diderot, HelvĂ©tius, Hume, Locke, and especially Montesquieu (Beirne, 1993). Reading these philosophers, members of the Academy of Fists wrote on a variety of subjects ranging from economic, political, social, aesthetic, to scientific concernsâall published in their journal, Il CaffĂš. The latter was designed to imitate the flamboyancy of French philosophical writings at the time and to embrace the critical edge that Enlightenment thinkers had forged across Europe, especially in France and Scotland (Beirne, 1993; Calisse, 2001). One of the members had access to the prisons which enabled some insight into prison conditions and the plight of contemporary prisoners (Maestro, 1973, p. 12). From their publications and many debates, Beccaria would learn about inquisitorial legal procedures and the inhumane conditions of confinement in Italy. This, no doubt, prompted his broad reformist agenda, but let us turn to specific examples.
Widely acclaimed by legal historians and philosophers, Beccaria reacted to outside forces: âtwo institutions, or rather two forces, had been the particular objects of his attacks âŠ; the authority of the Roman law and reasons of Stateâ (Calisse, 2001, p. 461). Beccaria championed humanism, reason, and rationality as the basis for reforming contemporary ecclesiastical entryways that centered on inquisitorial judgment. Beccaria viewed inquisitorial entryways to criminal justice as inhuman, irrational, baseless, and tyrannical. As he put it:
From this statement, one gleans his political commitment to humanism and tolerance and a wide rejection of superstition, ambitious sovereign agents, corruption, preâtrial secrecy and postâtrial public violence, as well as cruel and tyrannical monarchical or ecclesial rulers. His calls for rational and secular interventions in criminal matters echoed the widespread Enlightenment transformations of medieval societies (see Beirne, 1993; Calisse, 2001; Maestro, 1973).
He addressed his critiques to a late medieval a...
