Abstract
Cesare Beccaria’s On Crimes and Punishments has had a profound impact on, and made significant contributions to, among others, the study of law, justice, crime, and punishment. Unsurprisingly, there is a voluminous literature on this text. This article subjects Beccaria’s treatise to an exegetical reading and focuses on the aesthetic inquiry at heart of the text. Beccaria professes to undertake a rigorous scientific inquiry into crime and punishment. He repeatedly invokes language from modernity and the enlightenment—e.g., probability, correlation, and other mathematical tools (e.g., geometry)—to ground the scientific nature of his treatise. Yet, what Beccaria engages with is aesthetic and what is produced is not scientific knowledge but aesthetic knowledge. Rather than read this as a criticism, the article highlights how the concept of justice—like beauty or virtue—is, and can only or largely be, a matter of aesthetic inquiry, and explicates why Beccaria’s text ought to be read as an aesthetic inquiry into justice.
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Notes
Thomas Hobbes’ Leviathan (1985 [1651], pp. 111–114), which preceded Beccaria’s treatise by over a century, draws upon the notion of mathematical-like knowledge to understand social phenomena, and is a useful comparison to further locate and contextualize Beccaria’s method.
Beccaria says that the excess of punishment – so that it is slightly greater than the benefit of the crime – ‘must be calculated precisely according to the damage to the public good […]’ (Beccaria 2017 [1764], p. 69; emphases added). There are other examples that can be cited but these are unnecessary because the focus of the article is not specifically upon this point.
The imaginative and the fictional are not one and the same and should not be conflated or confounded. In Beccaria’s treatise the imaginative does not always lead to the fictional. However, there are important parts, especially as it relates to proportionality, where this transpires.
The nature and workings of exemplarity is an important part of the law and aesthetics literature which has sought to probe the way legal thinking appears to seamlessly move from the particular to the general (and vice versa) (see Del Mar 2013). While somewhat relevant to unpacking Beccaria’s logic, this aspect is not developed in this article, though it is certainly one way in which the narrative can be framed.
On the nature of faulty reasoning see Hobbes 1985 [1651], pp. 111–114.
This is why, at times, the retributivist ethos in Beccaria’s work has been acknowledged (Newman and Marongiu 2017, pp. xli-xliv).
The claim is not that crime ought not exist or that it should not strive to address (even redress) harm. Nor is it claimed that crime does not pose/cause harm. It is not polemical to state that murder is profoundly harmful to the very existence of the victim (not to mention the more nebulous forms of harm to the victim’s family and friends, and society more broadly). Rather, the point is that many ‘problems’ labelled as crime need to be constructed, and they are fluid over time and space. For example, different jurisdictions will treat the same phenomenon in different ways imputing to them different degrees of harm, perhaps even none (e.g., rape or sexual assault is treated very differently in the West than it is in other parts of the world), while even in the same jurisdiction, issues once considered crime are not necessarily considered as such today (e.g., homosexuality or abortion) (Ranasinghe 2010; 2011; 2015). Thus, the harm said to be a constitutive feature of crime is always unsettled and subject to (re)construction over time and space.
Nicola Lacey (2016, pp. 40–41) states that empirical studies show a remarkable consensus regarding the seriousness of what are standard crimes (referred to as ‘ordinal proportionality’) but very little consensus about what the appropriate penalties ought to be (referred to as ‘cardinal proportionality’). Yet, as this article claims, on a theoretical and conceptual level, it is impossible to sustain the foundation for such a consensus given the very fabrication of harm. Or, another way to put it, is to say that the consensus that is documented empirically is blind to the very fabrication upon which the foundation of proportionality is sustained.
At times Beccaria vacillates—a common feature throughout his work—and claims that exactness and precision are possible. For example, when he discusses how to address and prevent crime, in particular the third class of crime pertaining to ‘disturbing the peace and quiet of citizens’ (Beccaria 2017 [1764], p. 31)—the premises he develops here could be generalized to all classes of crime—Beccaria writes that such a matter should be ‘considered with geometric precision […]’ (2017 [1764], p. 32; emphases added). Given the focus of this article is to show that even meeting the soft or modest criterion of proportionality is an enormously difficult task given the near impossibility of gauging the harm posed by crime, this point need not be laboured.
Schumpeter, for example, places Beccaria as an important figure in the economics movement, even equating him to Adam Smith (1961 [1954], pp. 179–181).
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Ranasinghe, P. Cesare Beccaria and the Aesthetic Knowledge of On Crimes and Punishments. Law Critique 34, 127–144 (2023). https://doi.org/10.1007/s10978-022-09321-6
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DOI: https://doi.org/10.1007/s10978-022-09321-6