Disclaimer: This post was originally written in Chinese and translated into English by GPT-5.2.
Italian jurist Cesare Beccaria (Cesare Beccaria, 1738–1794)’s On Crimes and Punishments is a groundbreaking work in the field of modern criminal law, with far-reaching significance. The author was a young man of only twenty-five; moreover, when he first set out to write this book, “although he had graduated in law, he lacked direct and profound understanding of the criminal system of the time.” Yet as soon as this little book of more than sixty thousand words was published, it caused an uproar: critics accused the author of being an “enemy of religion and Christianity,” a “wretched philosopher and a bad man,” while admirers asserted that the book “hath engaged the attention of all ranks of people in every part of Europe,” and “It would be means of softening the remains of barbarism in the laws of many nations.” Although the timid, worldly author lay awake all night, worried that he would thereby be expelled from the country and thenceforth be unable to make a living, so that at the outset he refused to sign his name, the book still spread of its own accord. The moment it appeared, it sold out immediately; the foreign translations were no less sensational than at home. It is said that by the end of the 18th century there were no fewer than 60 editions, and the author became famous thereby. What astonished readers most was that this eloquent, rigorous, serious, and concise theoretical work on criminal law was wrapped in elegant prose, rich imagination, and a free and easy structure, full of vigor and vitality. We have to say this is a “classic strange book”: time cannot dim its luster but instead keeps it evergreen; its sudden emergence, its subtle yet profound meaning, and the author’s unique personality (after finishing it he almost washed his hands of the subject and no longer specialized in jurisprudence) further cast a mysterious glow over it, making it shine.
The pioneering nature of On Crimes and Punishments lies in the fact that the whole book is not based on any positive law—that is, one cannot find ready-made intellectual grounds for it in the then-existing criminal law system and principles—and thus it has considerable originality. The originality here does not mean independence of thought in the absolute sense, such that no clues can be traced in thought; rather, it means that, on the basis of his own understanding and grasp of predecessors’ doctrines and his unique observations of human nature and human society, the author abstracted a few limited criminal-law principles in the philosophical sense as theoretical starting points, and, through a strict and precise application of natural-scientific thinking and formal logic, deduced an ambitious, grand, highly general, theoretical, and systematized criminal-law system. In fact, the writing of this book was, from the outset, encouraged and urged on by members of an elite group (a society of learned men) that Beccaria had joined—the “Fists” society—especially its founders, the Verri brothers, Pietro and Alessandro. Giovanni Lionna later said that the book “arose from an internal dialogue of an advanced intellectual collective; in a certain sense and to a certain extent, it is a collective work.” Verri, whose relationship with Beccaria later deteriorated, even once claimed: “In a month I could find from criminal-law writers, from Montesquieu, Helvétius, Voltaire, and Grévy, many arguments similar to his, making him look like a plagiarist.”[1] In any case, this shows that On Crimes and Punishments is by no means a work conjured from thin air, but has its sources. Yet the coherence of the book’s discourse from beginning to end, the organic unity of the whole, the brilliant discussions found everywhere, and its enduring, cross-era popularity also make us believe that the book’s pioneering character lies fundamentally in its originality—and that originality belongs to Beccaria. When we speak of On Crimes and Punishments, we are speaking of criminal-law thought represented by Beccaria.
Specifically, the book’s pioneering or original character is manifested in the forward-looking nature of its intellectual content, the completeness of its logical form, and the humanistic concern overflowing throughout the book; in the field of criminal law, the organic fusion of these three is something predecessors did not articulate, and did not dare to articulate. But these three are combined so tightly that, when we discuss them, it is difficult to separate them cleanly; any mechanical splitting will distort the book’s original meaning and weaken its brilliance. To avoid this, the author of this essay would rather sketch the book’s general intellectual framework and main theoretical viewpoints from a methodological perspective, and in the course of the exposition cite the author’s own words as much as possible (while also referring to the English translation), so that the book’s original appearance and the author’s original meaning can be presented in the most basically truthful way.
As discussed above, Beccaria actually wrote On Crimes and Punishments in the posture of a philosopher rather than a criminal-law scholar; the criminal-law scholar was merely an ancillary title under his philosopher identity. In his own words, he was both “a lover of gentle truth” and a “cool examiner of human nature,” a philosopher “whom mortals cannot understand.” This is why, at the very beginning in “To the Reader,” Beccaria called on readers to “endeavor to discover my errors in logic or my shortsightedness in politics” (of course, partly also for self-protection). For a philosopher, the top priority in producing a philosophical theoretical system is how to find some reliable, pure, hard-to-overturn theoretical starting points or basic principles, and on that basis strictly use universally accepted formal logic for deduction and theoretical construction. Hence he declared: “I write only of the crimes which violate the laws of mankind and the social contract, and not of sins,” because the latter are “determined from other principles than those of a limited human philosophy.” (Chapter 39) This is the key to understanding the book. And as a rationalist (rationalist) with humanistic concern in the Enlightenment Age (enlighten age), Beccaria had a pragmatic, incisive yet ideal truth-seeking understanding of human nature, human social relations, and criminal law as a regulator of relations between person and person and between person and society; it was precisely this understanding that laid the solid foundation of his criminal-law thought.
In Beccaria’s writing, human beings are essentially self-interested and utilitarian, and the society composed of human beings is essentially likewise selfish and utilitarian[2]. He analyzes these issues from the perspectives of utilitarianism and social contract theory. Partly drawing on Thomas Hobbes’s (Thomas Hobbes) account of the state of nature (the state of nature) as a “war of every man against every man,” Beccaria believed that “the fact caused by the corruption of human nature and the absence of explicit sanctions” is the fundamental cause of the “state of war before the social state.” (“To the Reader”) The multiplication of the species, competition for resources, and an endless state of war made self-interested people begin to detest “a liberty which became of little value, from the uncertainty of its duration,” so they began to “sacrifice one part of it to enjoy the rest in peace and security,” and the sum of these portions of liberty that were ceded constituted the sovereignty of a nation (the sovereignty of a nation), held by the sovereign (sovereign), who is the lawful administrator (lawful administrator) in the legal sense. Unlike temporary compacts (temporary compacts) in the original state of barbarity (original state of barbarity), which arose from need and disappeared from need, laws became the means by which naturally isolated people united into society and escaped uncivilized conditions. But this alone was not enough, because the “criminal impulse”[3] of human nature—the impulse to reclaim the part of liberty one had ceded, and to encroach inch by inch upon the part of liberty ceded by others—made it a potential possibility for humans to return to the earlier chaotic primitive state; thus it was especially necessary to set up some “motives that strike the sense” or something that would produce “stronger and more lasting impressions” than ordinary laws to prevent this natural impulse. This, Beccaria believed, is the origin of punishment. (See Chapter 1, Chapter 42) Just like the origin of law, punishment also originated in the choice of selfish and self-interested human beings, while also conforming to the greatest common denominator of the interests of all humanity. And in view of the “indeliable sentiments of the heart of man”—that is, that one will not give up individual liberty for the public good, that if one must give up liberty one will give up as little as possible, and that if possible one wishes to escape the unfreedom imposed by the social contract on everyone else—the existence of punishment forms an eternal tension with it, used to maintain the dynamic stability of society; and the power of punishment is thus equivalent to the aggregate of these, the smallest portions possible, of liberty that people have ceded. (Chapter 2) Conversely, since the tension between the “criminal impulse” of human nature and punishment that prevents this “criminal impulse” is eternal, then using punishment to prohibit all types of crime is not only impossible and unrealistic, but may also be creating new crimes and paving the way for despotic and arbitrary laws. To forbid people to commit crimes would mean we must be deprived of the use of our senses; that is absurd, and would end up merely becoming a tool for the exclusive privilege of a few. The conclusion is: preventing crimes is preferable to punishing crimes, conforming to the basic principle of good laws guiding the people toward the maximum of happiness/the minimum of misery, (Chapter 41) and also to the original intent of ceding liberty and forming punishment, where the fundamental interest of all humanity lies. Beccaria’s strict grasp of concepts, deep understanding of human nature, and clear observation of reality are thus evident.
Simply put, Beccaria did not rate human nature highly; he believed people are selfish and self-interested, seek benefit and avoid harm, and consider only their own interests; society and the nation-state are nothing more than the result of the whole of humanity having to compromise with one another according to their respective interests—and yet this result, invisibly, better conforms to the public interest, being an inevitable choice in the dimly fated course of human development. The so-called eternal tension between the “criminal impulse” of human nature and the existence of punishment is in fact merely the externalization of the eternal tension between individuals and individuals and between individuals and the collective, formed by self-interested and utilitarian nature; ultimately, human nature contains contradictory factors—this is a consensus any cool examiner should reach. Precisely for this reason, even the author’s phrasing of “not rating highly” is in fact inappropriate, but for ease of understanding it must be said for the time being. In fact, Beccaria’s low evaluation of human nature has nothing to do with morality; it is merely a cool basic observation and theoretical preposition of a truth-seeking philosopher. His criminal-law theory is nothing more than “the product of purely human conventions, separately considered, expressed or supposed as dictated by common necessity and utility,” and is extremely neutral and objective in attitude. That is, since such human nature is an irrefutable “universal principle,” truly excellent criminal law should be “wise laws in which benefits are shared,” guiding interests according to circumstances, and formulated according to the principle of “the greatest happiness of the greatest number.” In Beccaria’s words: “Human justice, or political justice, is only the relation between actions and the varying state of society; it may vary with the necessity or advantage of actions to society… The duty of the public jurist is to determine the relations of political justice and injustice, that is, the relations of actions to the benefits and harms of society.” (“To the Reader”) What Beccaria did was merely, from the utilitarian standpoint of the pure interest of all humanity, an Enlightenment thinker clarifying to the public the stubborn and cruel errors accumulated over the past centuries, expounding philosophical truth—namely, the relations between sovereigns and their subjects, and between nations—and thereby revealing the basic framework that an ideal criminal law ought to have. (“Introduction”) This is also the intellectual root of why Beccaria could break free of existing criminal-law preconceptions, strike out on a new path on the most basic issues of criminal law, and thus stand out in the entire field. The epoch-making nature of On Crimes and Punishments is directional, and its reasoning is easy to understand.
Before further introducing the basic framework of On Crimes and Punishments, it is also necessary to understand what utilitarianism is, so that the book’s intellectual thread can be seen more clearly at a glance. So-called utilitarianism is a psychological-cognitive mode that pursues the maximization of utility, which can be explained with three elements—purpose, constraints, and countermeasures: what countermeasures to use, to maximize overcoming the limiting conditions that exist in reality, thereby maximizing the attainment of a given purpose. To achieve theoretical consistency, the purpose, constraints, and countermeasures here must be strictly constrained and extremely clear; otherwise everything becomes bland and without any thread.
As a legal work with a strong philosophical color, On Crimes and Punishments is no less strict than natural science in concepts when it defines the purpose of criminal legislation and the objective external constraints it must face. The purpose and constraints here, at the macro level, as argued above, can be expressed as:
The purpose of criminal legislation: to better protect that part of liberty remaining to each person after cession from infringement, so that each person’s liberty is maximized in the ideal state, thereby making society maximally ordered.
The objective external constraints that must be faced in criminal legislation: the eternal instinctive desire of selfish human nature for unrestrained liberty, and the resulting sensory and intellectual despotism, ignorance and obscuration, and externalized social积弊 and conflicts.
Abstractly viewed, these are the two basic points that must not be separated from even for a moment in grasping Beccaria’s criminal-law thought. Around these two basic points, Beccaria offered a series of corresponding countermeasures:
This can be regarded as a conceptual standard for testing whether a criminal-law system is purpose-fit. That is, the first step in making criminal law is to make it (down to each punishment) as much as possible conform to the purpose itself. The purpose itself is in fact the standard by which everything is measured; the purpose itself is principled—this is utilitarian in color. But constrained by selfish human nature, the resulting limitation is: Countermeasure 1 is conceptual accuracy, not factual accuracy; it lacks truly observable operability, is prone to missing the mark, and brings tyrannical excess. This requires other compensating countermeasures.
This is the principle known today in criminal law as the principle of legality (nullum crimen, nulla poena sine lege), and it compensates for Countermeasure 1. Legality, and being drafted in clear and simple language, is in fact the best known way to address selfish human nature, consistent with the spirit of the social contract. As long as Countermeasure 1 is implemented, Countermeasure 2 can effectively deprive rebellion and despotism of any pretext, thereby achieving a restraining effect. But the limitation here is also extremely obvious: the makers of criminal law and its targets are selfish human beings by nature! Therefore, statutory crimes and punishments are a necessary condition for just crimes and punishments (i.e., those conforming to Countermeasure 1), but do not constitute a sufficient condition. Without it it cannot be, but with it it need not be. This requires other compensating countermeasures.
These three points can be grouped as a set of countermeasures that tightly constrain one another and directly compensate for the shortcomings of Countermeasure 2. Countermeasure 3, like Countermeasure 1, is a fundamental conceptual requirement—since Countermeasure 2 may deviate from the social contract, Countermeasure 3 further affirms the necessity that the legislator represent all members of society, complementing Countermeasure 1’s requirement that punishment have absolute necessity. From this it follows that punishment representing all members of society must act equally on every member of society, which is also determined by the will of each member. Countermeasure 4 looks from the other direction: conceptually, a criminal law that can fully achieve equality for all cannot be unjust; the two are mutual sufficient and necessary conditions. If Countermeasures 3 and 4 could be fully implemented, then so-called adjudication would indeed be merely a procedure of affirmation and negation; whoever performs it would make no difference. However, in fact, the indelibility of human nature makes adjudication by a professional, independent, upright third party more reliable than by any arbitrarily chosen, interest-entangled, uncertain other party—and this is precisely what we need Countermeasure 5 for. But strictly speaking, Countermeasures 3–5 all have an unavoidable limitation: they easily become substantively insufficient and formally excessive, or their substance cannot be maximized in realization.
At this point, we have in fact again been pushed back to the inherent constraints and purposes of criminal law: criminal law can never prohibit crimes caused by the interaction of human nature; the best criminal law can only maximize the common interest of all members of society. Criminal law itself uses only a method of negating human nature (the so-called “fighting evil with evil”) to affirm the common interest inevitably led to by the interaction of human nature. This means: on the one hand, criminal law can never rid itself of the negativity of its original intent; but on the other hand, from the perspective of criminal law’s positivity and origin, it cannot not exist. Putting this together, the key question now instead becomes: how to minimize the negativity of criminal law to the greatest extent? Or in Beccaria’s words: how to make crimes of every kind less frequent, in proportion to the evil they produce to society? (Chapter 6) To this, Beccaria’s answer is: criminal law should preferably prevent crimes rather than punish crimes; it should leave true criminals no place to stand, while being strong enough to prevent people from continuing to offend, (Chapter 11, Chapter 28, Chapter 35) so that the purpose of establishing criminal law is achieved, while the “fighting evil with evil” means of criminal law need not be, or is implemented as little as possible—thus making it possible to minimize the negativity of criminal law to the greatest extent.
Once this is clear, we then suddenly realize that the main body and practical significance of On Crimes and Punishments in fact lie in pointing out, from various aspects, principled methods for preventing crimes. Countermeasures 1–5 elucidate, from an overall perspective, the prerequisite principles (prerequisite) that legislation (Countermeasures 1–3), adjudication (Countermeasure 5), and enforcement (Countermeasure 4) should have, and they are also prerequisite principles for preventing crime; because deviation from these principles is in fact equivalent to acquiescence in despotism and anarchy, fundamentally no different from crime, and thus there is no way to build an ideal criminal law. All subsequent countermeasures continue to refine on the inheritance of Countermeasures 1–5; although from later perspectives they are still merely statements of certain principles, their operability and guiding significance are stronger, and their direct influence on later generations is more obvious.
This is the now well-known principle of proportionality between crime and punishment, with two meanings: first, the greater the crime, the greater the punishment should correspondingly be; it is best if there is a fixed proportion between the two; second, when the crime is different, the punishment generally will also be different; it is best if specific crimes can also correspond to one another. If implemented, this helps criminal provisions make effective distinctions between this crime and that crime, felonies and misdemeanors, so that the necessity, clarity, specificity, and even equality of each punishment prescribed by criminal law are guaranteed by mechanism; otherwise, there can be no talk of the justice and fairness of criminal law, and so-called crime prevention becomes even more groundless. As Beccaria movingly pointed out: “Whoever sees that the same punishment of death is inflicted for killing a pheasant, for killing a man, or for forging an important deed, will make no distinction between those crimes; the feelings of morality are destroyed. These sentiments are the work of many centuries and much blood; they were formed with extreme difficulty and slowness in the human mind; to foster them it was thought necessary to employ the noblest motives and the most august ceremonies.” The implication is that not only would criminal law then become a dead letter, but more importantly, the symbolic meaning behind the nullification of criminal law—human nature would continue to corrupt in unimaginable ways.
According to the above principle, the next task is to prescribe different species of punishments in determining penalties, and to measure different degrees of punishment in sentencing. The combination of species and degrees, like the XY axes in algebraic geometry invented by Descartes, symbolizes legal bottom lines extending horizontally and vertically, making the enlightened monarch’s legal net in Beccaria’s writing as inescapable as the net of heaven, as precise as mathematical calculation[6]. Beccaria, likewise pursuing certainty, therefore proposed the concept of “a corresponding scale of punishments” to measure different degrees of criminality among crimes, thereby implementing corresponding punishments in a targeted way. (Chapter 6, Chapter 7) But the question then is: what serves as the measuring reference for the “scale of punishments”? Or, what is the standard for measuring crimes?
If criminal law is to embody the common interest of all members of society under the social contract and not be controlled by some particular person or group, the best approach is to make criminal law subordinate to no individual will other than the public interest. There is no doubt that using relatively objective social harmfulness as the basis for punishing crimes is worlds apart from using impenetrable human will, which is out of the power of human laws, as the basis. (Chapter 7, Chapter 32) But it is worth noting that this does not mean that in Beccaria’s theory, intention or manifested criminal intent (attempt) is not a reference item in punishing crimes; rather, it must be extremely strictly constrained on the basis of social harmfulness, mainly in two respects: first, for criminal acts that objectively cause considerable social harm, it may be necessary to distinguish cases. For bankrupt debtors, for example, Beccaria believed that intentional bankrupts and innocent bankrupts could be distinguished, and that one should further distinguish among four situations: intention, gross negligence, slight negligence, and complete innocence. (Chapter 34) Another example is joint crimes: one must distinguish the different criminal responsibilities borne by offenders in the course of the crime. Second, for “criminals” whose crime has not yet been carried out but whose intent is obvious, a certain punishment should be imposed to prevent the intent. But that punishment should, according to the principle of proportionality, be lighter than for the completed offense; in principle, a punishment sufficient in degree to induce repentance is enough. (Chapter 37) In addition, when assessing a crime’s social harmfulness, social impact should also be considered. For instance, for crimes that infringe citizens’ life security and personal liberty, the social harmfulness of grandees and magistrate is greater in force and at a greater distance than that of the populace, because their actions destroy notions of justice and responsibility in society and replace them with notions of force; this is very dangerous for everyone (Chapter 8), because it openly negates, in the name of representatives of the people, the social contract that symbolizes public will, greatly diminishing the authority of the social contract.
Taking social harmfulness as the measure and proportionality as the principle, Beccaria examined and distinguished different types of crimes and modes of punishment. He divided crimes into three major categories, from high to low in social harmfulness: ① crimes immediately destructive of society or its representative (immediately destructive of society or its representative)[7]; ② crimes destructive of security of individuals (destructive of security of individuals), including security in life, property, and reputation; ③ crimes which disturb the public tranquillity (crimes which disturb the public tranquillity). (Chapter 8, Chapter 11) This is merely a conceptual macro classification. The first category destroys the prerequisite for the existence of the social contract, and naturally is the gravest of crimes; the second category infringes the foundation of the social contract and each person’s unquestionable natural right—individual security—equivalent to challenging the principal end of of all society, and thus is an unforgivable crime; the third category is an action contrary to the laws which relate to the general good of community—culpable and punishable, but not deserving of death. For example, unlike Rousseau-style forcing those who do not abide by the general good to abide by it (forced to be free), Beccaria pointed out: “Whoever disturbs the public tranquillity, whoever does not obey the laws, that is, the conditions by which men mutually tolerate and protect one another, should be excluded from society; that is to say, should be banished.” (Chapter 24)
But “the end of punishment is neither to torment and afflict a sentient being, nor to undo a crime already committed,” but only “to prevent the criminal from doing further injury to society, and to prevent others from committing the like offence.” (Chapter 12) Therefore, punishments corresponding to social harmfulness cannot be infinitely escalated. This is, on the one hand, to restrain the potential abuse of punishment by human nature or the causing of greater harm to society to evade harsh penalties; on the other hand, it is also to prevent punishment from degenerating from “fighting evil with evil” into “revenge begetting revenge.” Although Countermeasures 6 and 7 can be theoretically impartial and fair, they are not the most just and necessary choice for society. Our purpose is “to better protect that part of liberty remaining to each person after cession from infringement, so that each person’s liberty is maximized in the ideal state, thereby making society maximally ordered,” but if mechanically executing Countermeasures 6 and 7 merely expands the negativity of punishment and can only increase the distance between us and the purpose, then do we still need additional compensation and limitations in our countermeasures? With a hot purpose and blind methods, from a utilitarian perspective, would that not be more loss than gain? For example, the death penalty not only forever deprives the condemned of the chance to reform and become good, but also does nothing to promote the moral temper of the age and the human heart, and may even be a kind of degradation; using the method of committing one crime to make the state declare war on a citizen is less effective, in terms of results, than the long and profound deterrence produced by life at hard labor. (Chapter 28) We clearly need other new countermeasures.
The inevitable link above means: before the crime is committed, make people fear the criminal law, and fear only the criminal law; conversely, as long as every citizen does not do things that violate criminal law, then aside from consequences that their acts themselves may cause, they need not worry about encountering other troubles. Once the crime has been committed, leave true criminals no place to stand, and ensure, as far as possible, the speed and timeliness of punishment for crimes. (Chapter 41, Chapter 8, Chapter 35, Chapter 19) As for ensuring the deterrence and mildness of punishment, Beccaria’s reasons are convincing: “Every sentient being attends only to the harm he knows; this is an evident rule.” (Chapter 33) “For every crime which, in its nature, may often remain unpunished, punishment becomes a stimulus. This is a general rule… such is the nature of our imagination.” (Chapter 31) “The greater the punishment, the greater its duration, is not what has the greatest effect on the human mind; it is the duration of punishment. For it is not the violent but temporary impression, but the frequent repetition of small impressions, that most easily and most constantly moves our sensibility.” (Chapter 28) “The greater the evil of the punishment, the more the criminal endeavors to avoid it. To escape the punishment of one crime, men commit more crimes. The countries and times most notorious for the severity of punishments have always been those in which the most bloody and inhuman actions were committed.” (Chapter 27) Therefore the death penalty and torture to extract confessions are unacceptable. The unacceptability of the death penalty can be seen above; the unacceptability of torture to extract confessions is, besides being in itself a trampling of natural rights[8], also a trampling of the legitimacy of criminal law, as it causes many miscarriages of justice, making the weak-willed imprisoned though innocent while the strong-willed escape. (Chapter 16)
Speaking of the principle of mildness in punishment, in fact we once again return to the issue of restraining the negativity of criminal law, and also return to the purpose of criminal legislation, which is equivalent to completing yet another spiral ascent in understanding. Constantly maintaining the mildness of punishment can preserve the substantive correspondence between crime and punishment, achieve just punishment while ensuring every crime is punished; at the same time it helps make the deterrence of punishment more stable and lasting, educating the populace and allowing the spirit of the rule of law to spread. Theoretically, such results are the most direct and effective restraint on the negativity of criminal law, reflecting Beccaria’s humanistic concern. In this sense, the importance of the principle of mildness in punishment is no less—and indeed greater—than the importance of Countermeasures 1–5.But the calm and pragmatic Beccaria realized: “Any law, if it has not the power to defend itself, or if the social circumstances in fact leave it without any foundation, then it ought not to be promulgated.” (Chapter 32) That is to say, relying only on the conclusion that punishments must remain restrained, and on the existing countermeasures 1—8, is still not enough, because they are either too macro, or too focused on criminal law itself. This causes other practical aspects—such as the object upon which punishment is implemented, the relevant procedures and personnel for the determination and execution of punishments, the unity of the content of criminal law, and the society itself that criminal law is meant to maintain—not to receive the necessary attention; and the absence of these aspects comes at the cost of the entire legal system losing its self-sufficiency. Such criminal law cannot form a dynamic counterbalance with human nature, and gradually cultivate in it fine moral sentiments. What is called a law that conforms to the spirit of the social contract is by no means that the masses, like slaves, demand that an enlightened monarch for countless generations maintain laws that meet absolute necessity, because human nature—including that of a monarch as a human being—is not something that can be trusted forever; what is trustworthy is that, under the full game of interests of all members of society, a more just, fair, dynamic, and stable legal system will gradually emerge, from backstage to the front. However, before such a situation appears, what the masses can do is a process of striving—a process of striving for institutions favorable to themselves. Beccaria pointed out the direction of striving for this process, and within this process briefly sketched for his contemporaries and later generations some corresponding contents to strive for:
In accordance with this principle, toward criminal suspects or defendants, torture, inquisitorial procedure[9], and leading interrogation are not permitted; only absolute evidence (perfect proof) can convict, and examination should use an investigatory procedure. The examination period should be as short as possible; if evidence is insufficient, release should occur as early as possible. The law should determine a certain time limit for the defense of the accused and for verifying the determination of the crime. (Chapter 30) But according to the spirit of the social contract, the criminal suspect or defendant in examination also cannot stubbornly refuse to answer questions; otherwise, they must also be punished with the penalty determined by law. (Chapter 16, Chapter 17, Chapter 38, Chapter 14, Chapter 30)
Specifically, this includes: arrests and examination procedures that strictly abide by the law; credible and public witnesses, evidence, and trials; flexible and pragmatic limitation mechanisms; mutually supervising judicial officials; and so on. (Chapter 29, Chapter 16, Chapter 13, Chapter 14, Chapter 38, Chapter 30, Chapter 43, etc.)
Although Beccaria did not state Countermeasure 11 explicitly, all of the above countermeasures should ultimately be embodied in the corresponding criminal law provisions, so Countermeasure 11 is a reaffirmation of all the above countermeasures and is necessary; this can also be inferred from Chapter 29[11]. In addition, the issue of the unity of the internal spirit of criminal law—that is, the issue of logical unity—can be seen from the book’s attitude toward the death penalty, secret accusations, and secret punishments. On the one hand, Beccaria holds a general negative attitude toward all three throughout the book; (Chapter 28, Chapter 15) but when extremely extreme circumstances arise—that is, when there is incoherence among the above countermeasures—then, based on the highest common interest, he makes appropriate compromises. For example, Beccaria believes that in such circumstances, the death penalty can be regarded as just and necessary, and informers may be exempt from punishment but must be banished. (Chapter 28, Chapter 37) Another example: Beccaria says, “It is doubtless of importance, that no crime should remain unpunished; but it is useless to make a public example of the author of a crime hid in the darkness” Additionally, if a group of accomplices flees and one of their companions is put in irons, those who escaped may be left unpursued, because their unknown fate is equivalent to perpetual exile imposed on them, and they have completely lost social dangerousness. (Chapter 16)
We have said that the purpose of criminal lawmaking and the objective external limitations it must face are eternal and dynamic; coupled with Beccaria’s utilitarian stance, this means that rigid formal logic sometimes has to be adapted according to the value of the matter. Although such adaptation sometimes cannot avoid the criticism of “relativism,” objectively speaking it is not without profound practical significance, enabling people to break free as much as possible from viewing problems through certain limitations, thereby recognizing the origin of things and approaching the essence of problems. This is likewise the basic spirit of Countermeasure 12:
In other words, for criminal phenomena that can be prevented without criminal measures, try as much as possible not to use criminal measures to prevent them, but instead use other social or political measures; this is a reaffirmation of the argument for the absolute necessity of punishment required by Countermeasure 1. The later criminal sociology school’s view that “the best social policy is the best criminal policy,” to be fair, had already been embodied in Beccaria’s system of criminal law thought. Though it is only scattered bits, its significance is great. The fundamental footing of Countermeasure 12 lies in the fundamental attribute of crime—sociality—which no calm analyst should ignore. Thus, when Beccaria classified crimes in Chapter 8, he pointed out: “Every crime, even of the most private nature, injures society.” Just as “the most certain method of fixing citizens in their country is to increase the welfare that depends on it,” (Chapter 32) the most reliable method of preventing crime should be, as far as possible, to satisfy the common interests of all members of society through social or political measures. Punishment is the last firewall for maintaining this common interest; unless absolutely necessary, it need not be used. For example, regarding the issue of debtor bankruptcy, Beccaria advocated that legislators promote the publicization and clarification of debt contracts, and also advocated building a public bank for relief, believing these measures to have a hundred benefits and no harm, and to be highly effective in reducing debt-related crimes. (Chapter 34) For another example, in the last few chapters of the book, he respectively, from the perspectives of disseminating science and knowledge, rewarding virtue, and promoting education, (Chapter 42, Chapter 44, Chapter 45) proposed non-penal measures to prevent crime.
Using a method of exegetical commentary upon the classics to dismember On Crimes and Punishments into pieces for combing and picking, it is hard to know whether it is “the Six Classics annotate me” and “bringing hidden meanings to light” to illuminate the book’s ideological essence, or “I annotate the Six Classics” and “reforming institutions by invoking antiquity” to sort out one’s personal readerly impressions. This is an interesting but endless question of the struggle between objectivity and subjectivity. But the author hopes that, at least spiritually, and in a negative sense, the above trivial, systematic summaries are such that even if Beccaria himself were to rise again, he could not flatly deny them; then some other words in this section may not be unnecessary.
In the first section the author already said: the pioneering and original nature of Beccaria’s book lies in the tight and organic fusion of three things—its forward-looking ideological content, the completeness of its logical form, and the humanistic concern overflowing throughout the book. The discussion in the third section has proved this point.
From the perspective of the forward-looking nature of its ideological content, On Crimes and Criminal Law for the first time systematically and clearly proposed universal principles transcending time and space, such as the principle of the necessity of punishment, the principle of legality, the principle of equality before criminal law, the principle of separation of criminal justice and criminal legislation, the principle of proportionality between crime and punishment, the principle of the unity of deterrence and restraint in punishment, the principle of in dubio pro reo, and so on. It also proposed far-sighted utilitarian criminal law ideas such as that social dangerousness is the only standard for measuring crime, that a necessary conceptual connection between crime and punishment should be established, and that non-criminal measures should be used as much as possible to prevent crime. In other parts of the book, the author has thought-provoking views on human nature, on religious politics, on social relations, on the real-world dilemmas of criminal law theory, on the disharmony between substantive and procedural criminal law, and on some disputes occurring among nations. The breadth and depth of what this criminal law book touches upon are unprecedented.
The forward-looking nature of the ideological content of On Crimes and Punishments is closely related to its complete logical form. Beccaria’s rigor in grasping concepts is astonishing. Taking a few limited philosophical principles as a foundation—such as human nature, the social contract, utilitarianism, and the like—Beccaria constructed his basic framework of criminal law and enriched his grand and ambitious system of criminal law scholarship. In this process, those limited philosophical principles were always strictly observed, from which the step-by-step progression, positive and negative contrasts, and mutual constraints of Countermeasures 1—12 arise. The above exegetical, commentary-style process of deconstruction and construction of the whole book has shown how subtle concepts are unified with and run through the entire volume. What should be noted is that this principle of logical unity takes utilitarianism as its principle; this reflects Beccaria’s realistic reflection on the essence of criminal law. In addition, his mode of thinking that pursues certainty and precision also drove his strict grasp of concepts. Reducing politics, punishment, judicial work, and public interest to a kind of special mathematical calculation; viewing humans as “sensible being”; regarding punishment as “a force that is easily felt” and “a strong, lasting impression”; comparing attraction between the sexes to universal gravitation; and so on, are the habitual thinking patterns of this “little Newton” who did not confine himself to a single discipline. In fact, they are a natural outpouring of the influence of natural science on the thought of a typical Enlightenment thinker. (Mathematics: Chapter 6, Chapter 16, Chapter 22, Chapter 34; universal gravitation: Chapter 31. Little Newton: “Beccaria and His Criminal Law Thought,” Section 2)
The affirmativeness required by punishment is an affirmativeness that concerns everyone’s life, (Chapter 14) so it is only natural that punishment pursues certainty and precision; Beccaria set an example for this. Like Enlightenment thinkers of the same period, behind this pursuit of certainty and precision lies seriousness and responsibility toward thought, caution and limitation toward evil, and acknowledgment and concern for human nature; beneath the inhumanly cool calm is hidden a childlike heart “that ordinary people cannot understand.” He advocated that punishments be the same for nobles and commoners, and strongly detested using money to eliminate infringements on the weak and the poor, because “once the laws permit, in some cases, that man ceases to be a person and becomes a thing, freedom does not exist.” (Chapter 21, Chapter 20) He believed that “theft is a crime that arises from poverty and despair; it is the crime of the unfortunate,” and therefore opposed imposing property penalties on such criminals. (Chapter 22) When opposing the death penalty, he said: “If I am to prove that the death penalty is neither necessary nor useful, I must first win the cause of humanity.” (Chapter 28) When discussing adultery, he affirmed: “Adultery is caused by people’s excessive pursuit of a certain need; this need is innate, it is universal and eternal for the whole of humankind, and it is even the cornerstone of society.” Of course, we must also realize that behind this humanistic concern there is likewise an inherent sense of superiority of Enlightenment thinkers “that ordinary people cannot understand”—we must not forget that they too are nothing more than that animal called man. Deeply rooted in their thought is that human nature, if not sinful or evil, is also not optimized or most ideal. Therefore, adultery is “caused by the excessive pursuit of a certain need,” and homosexuality is “a desire possessed by social and enslaved people, not a need of independent free persons.” (Chapter 31) Although he acknowledged that “the ignorance which judges by feeling is more to be relied on than the learning which judges by reasoning,” this is only “as to the moral certainty of evidence.” (Chapter 14)
The humanism of the Enlightenment has limitations; these limitations may be unavoidable, as long as we do not deny their most basic line of argument. Abstractly speaking, if we acknowledge that the interaction of human nature will produce contradictions, and that these contradictions can be optimized—that is, that optimized human nature and optimized human society can be harmoniously compatible to the greatest extent, thereby reducing contradictions to the greatest extent—then the limitations of humanism are eternally insoluble, at least until the co-presence of optimized human nature and optimized human society makes them wholly unnecessary. If we acknowledge, or do not deny, that in essence human nature ought to be that way, then such human nature will forever contain a contradictory movement of opposites, reflected not only in the social picture sketched for us by analysts, but also in their own thought itself. Reflection and study of the history of human philosophy and thought, especially of human natural language, makes the author more boldly propose that perhaps our “subjective” concepts of positive and negative, right and wrong, beauty and ugliness, higher and lower, and so on, initially had no different intent from “objective” concepts such as big and small, long and short, front and back, left and right: they were only to eliminate our deep-rooted fear of this uncertain world, even though this fear was later self-numbed, or disguised, it still takes root in the most essential existence of humankind. Human existence is an affirmation of existence and a negation of non-existence; this seems to be an inescapable thinking pattern. Thus, existence itself inexplicably sets itself against itself—we exist, and so we must negate non-existence; in order to negate non-existence, or merely to purely affirm the unquestionable fact of existence itself, we must exist in a better way… Human society as a whole has always been moving along an inexpressible trajectory toward certainty; this certainty is the envisioned optimized social picture. The limitation of humanism, if the term is unproblematic, is unavoidable, because that is unimaginable. And the significance of this limitation is not personal but societal as a whole, which makes us recognize how difficult the conception of optimized human nature is, and how difficult optimized human society is.
This difficulty is also unimaginable, especially the concrete practice and theoretical development of criminal law scholarship over the more than two hundred years since then, which has let us recognize this more deeply. Due to the limitations of the era, these subtle, specific criminal law problems were beyond Beccaria’s chance to witness or think of. But as a pragmatic person, at the beginning of the book he quoted Bacon to express a rational understanding of this difficulty:
For all things, especially the difficult ones, people should not expect sowing and harvesting to proceed at the same time; for them to gradually mature, there must be a process of cultivation.
But perhaps still constrained by the limitations of the era, he still expressed, in the confidence typical of Enlightenment thinkers, his belief in the distant future, even though he did not like the inherent uncertainty and deceptiveness of distant things (Chapter 9):
The fortunate age has not yet arrived; once it comes, truth will be grasped by the majority just as error is today. (Chapter 28)
[Italian] Cesare Beccaria: On Crimes and Punishments, translated by Huang Feng, Beijing: Peking University Press, 2008. The relevant English quotations involved in this paper all refer to An Essay On Crime And Punishment of “The Federalist Papers Project.” The English version is based on the first English translation published 18 months after the original work. When comparing the Chinese and English translations, the author found that each has its strengths: the Chinese edition has some content that the English edition may lack, while the English edition has expressions that are more brisk than the Chinese edition. The two can be used in combination.
[1] The above trivial facts are referenced from Huang Feng’s “Guide: Beccaria and His Criminal Law Thought” after the book On Crimes and Punishments; the English part refers to the English edition’s “Preface of the translator” (“Translator’s Preface”). The chapter quotations below are generally directly indicated in parentheses afterward.
[2] Chapter 2 says: in order to satisfy their increasingly complex and diverse needs, chaotic humankind formed independent societies, and these societies conflicted and competed with each other. Thus, a state of war was transferred from individuals to nations. Beccaria’s book constructs a criminal law system centered on a single nation-state; as for international criminal law issues, it involves very little, only touching upon asylum and rewards in Chapter 35 and Chapter 36, but not enough to constitute a system. But from this, considerations such as the territorial principle of the effectiveness of law, the protective principle, and some international interest disputes still reflect the utilitarian nature of society.
[3] Here, the “crime” in “criminal impulse” is spoken from the perspective of criminal law, the social contract, and public interest; otherwise, there would be no such thing as crime.
[4] The order of cited chapters is used as the order of arrangement for the parenthetical annotations. Same below.
[5] A hypocritical utilitarian concept refers to letting logic be obscured by personal feelings, seeing the small and not the large.
[6] Huang Feng’s translation has this sentence in Chapter 34 (not in the English translation): In politics, it is necessary to determine certain limits in order to calculate the public interest, just as in mathematics it is necessary to determine certain limits in order to calculate quantities. In addition, like the “political justice” mentioned above, Beccaria’s so-called political calculation can be regarded as a calculation of the degree of crime; for example, still in Chapter 34, he says: the trouble a thing causes in politics is proportional to its social dangerousness. Ultimately, the politics here is Aristotelian, with no essential difference from the social contract.
[7] However, from the level of reality, although all crimes, including crimes against individuals, are a kind of harm to society, there is no threat that can immediately destroy the entire society, because all crimes have a certain sphere of activity, circumscribed by time and space; therefore Beccaria is almost implying that crimes of the first category should be avoided as much as possible. (Chapter 8)
[8] Chapter 30: the security of one’s own life is a natural right.
[9] Chapter 17: “To prove a man innocent, it is necessary first to declare him guilty; this is called inquisitorial procedure.” The investigatory procedure appearing below is a procedure of “impartially understanding the facts.” In modern criminal procedure theory, the former is also called “inquisitorial procedure,” and the latter “accusatorial procedure.”
[10] Chapter 38 only says “formalities and ceremonies are necessary in the administration of justice,” which in principle differs in extension from Countermeasure 10. But according to the main thrust of the whole book, the formulation of Countermeasure 10 strictly conforms to Beccaria’s thought, and therefore it is specially summarized.
[11] Chapter 29 says: “Only the laws can determine in what cases a man is to be punished.” But Beccaria, in “Therefore, the laws should point out…,” also broadly lists some norms such as “detention, examination, punishment, evidence,” and so on. In sum, it cannot be proven that the spirit of Countermeasure 11 permeates the whole book.
Comments