Re-Reading Beccaria: On the Contemporary Significance of a Penal Classic

Description

Cesare Beccaria’s slim 1764 volume On Crimes and Punishments influenced policy developments worldwide and over decades, if not centuries, after its publication. For those who turn to Beccaria’s work today, the encounter is shaped by that knowledge. Appreciative of On Crimes and Punishments’ dual nature as historical document and repository of ideas, the contributions in this collection address different aspects of the criminal justice theory Beccaria offered his readers and face up to methodological questions raised by meeting a historical text of this kind – unsystematic and by modern standards often under-argued – with modern scholarly conventions in mind. Contributions in the first part of the book engage with Beccaria’s political theory of criminal justice through the lenses of political and penal philosophy, considering how Beccaria’s blending of social-contractarian foundations and proto-utilitarian policy analysis interlinks with the concrete set of criminal justice practices Beccaria presents as justified. This leads on to the second part where contributors approach Beccaria’s ideas with present-day reforms and developments in mind. Many of his policy proposals and arguments remain significant from our contemporary perspective, their limitations and omissions proving as instructive for the contemporary scholar as their more prescient elements. The third part offers those looking at Beccaria’s work today a glimpse into the practical difficulties facing the firebrand author turned public servant during his long career in the Habsburg-Lombardian administration. It puts his work into the broader context of pathways to criminal justice reform in northern Italy, Habsburgian Lombardy, and the Austro-Hungarian Empire in Beccaria’s day. Studies in Penal Theory and Penal Ethics: Volume 8 Acknowledgements Contents List of Contributors Introduction I. The Individual Chapters II. Acknowledgements PART I LOCATING BECCARIA'S CONTRIBUTION TO PENAL AND POLITICAL PHILOSOPHY 1. Beccaria's Political Theory of Criminal Justice I. Beccaria's Legal and Political Philosophy II. Beccaria's Political Theory of Criminal Justice III. Conclusion 2. Reconstructing Beccaria's Social Contract I. Mapping Beccaria's Use of the Social Contract onto Modern Social Contract Theory II. Beccaria's Social Contract: Foundational, Distracting or Superfluous? III. Conclusion: The Role of the Contract 3. Beccaria's Contractarian Criminal Law: Jurisdiction, Punishments and Rewards I. Beccaria's Contractarian Criminal Law: Criminal Law as Public Law II. Questions of Ambit and Jurisdiction III. Rewarding Virtue? 4. Crime, Punishment and the Social Contract: Towards the Constitutionalisation of Criminal Law I. The Death Penalty and the Social Contract: Placing Punishment-by-Death Beyond the Reach of Public Authority II. Demarcating the Social Contract III. Conclusion 5. Beccaria, Treason and the Social Contract I. Beccaria's Basis for Criminalisation – Utilitarianism Or Social Contract? II. Can the Social Contract Justify the Criminal Law? III. Why the Offence of Treason is a Test Case for the Social Contract Justification IV. Community and State V. Conclusion 6. Beccaria's Secular Metaphysics: Pain, Time and State Authority I. Beccaria's Post-Christian Secularism II. A New Metaphysics of Pain and Time III. Conclusion 7. Public Institutions without Public Offices: Beccaria's Use of Political Theory in the Reform of Criminal Justice I. Beccaria's Heterogeneous Practical Philosophy II. Beccaria's Great Insight III. Beccaria's Darker Legacy IV. Conclusion 8. Realism and the Rational Administration of the Law in Beccaria I. Realism II. The Rational Administration of the Laws III. Conclusion PART II LOCATING BECCARIA IN PRESENT-DAY DISCOURSES ON CRIMINAL JUSTICE 9. Beccaria Now: (Re)reading On Crimes and Punishments I. Introduction: Beccaria Then and Now II. Beccaria's Enlightened Method: Scientific Rationalism as Proto-Penal Theory III. A Political Theory of Criminal Justice IV. Reinventing Criminal Procedure V. Conclusion: Beccaria Now and Then 10. Should Murder be More Difficult to Prove than Theft? Beccaria and Differential Standards of Proof I. Introduction II. The Individualised Proof Interpretation III. The Asymmetrical Interpretation IV. Conclusion 11. Cesare Beccaria's Integrative Deterrence Approach I. Introduction II. Beccaria's Deterrence in a Nutshell III. Beccaria's Approach – The Conditions for Its Feasibility and a Reality Check IV. Suggestion for an Integrative Reading of Beccaria – a Humanistic Deterrence V. Proposal for Integrative Sentencing of Crimes VI. Concluding Remarks 12. Human Rights and Criminal Law: From Beccaria's On Crimes and Punishments to Modern Criminal Law I. Introduction II. The Rule of Law III. Torture IV. Crimes of Adultery and Sodomy V. Lessons to be Learned 13. Beccaria on the Human Rights Committee? An Excursus on the Parameters of Human Rights and Penology I. Introduction II. Beccaria and International Human Rights Norms: Common Roots III. Beccaria and International Human Rights Norms: Common Elements? IV. Penology, Penal Philosophy and Human Rights: Changing Parameters V. Conclusion PART III LOCATING BECCARIA IN EIGHTEENTH-CENTURY CRIMINAL JUSTICE 14. Criminal Justice Reform in the Austro-Hungarian Empire, Habsburgian Lombardy and Tuscany: Beccaria's Policy Memoranda in Context I. The Criminal Law of the Habsburg Crownlands during Maria Theresa's Rule II. Joseph II As Sole Regent: New Practices and New Laws III. Leopold II: Tuscany As a Model State, Damage Control in Austria IV. Towards Reform in Lombardy: Beccaria's Memoranda in Context V. Conclusion Appendix 1: Brief Observations on the General Code on Crimes and Punishments as Concerned with Policy Offences Appendix 2: Opinion of the Undersigned Members of the Committee Charged with the Reform of the Criminal System in Austrian Lombardy for Matters Pertaining to Capital Punishment (1792) Index