Essay

Punishment & Society

2014, Vol. 16(5) 501–519
Two hundred and fifty ! The Author(s) 2014
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DOI: 10.1177/1462474514551524

publication of On Crimes pun.sagepub.com

and Punishments: The

currency of Cesare
Beccaria’s thought*
Luigi Ferrajoli
Roma Tre University, Italy

Abstract
This essay highlights three aspects of the extraordinarily current relevance of Cesare
Beccaria’s On Crimes and Punishments in the 250th year since its publication. The first
aspect concerns criminal law, which Beccaria founded anew as a system of individual
safeguards against the arbitrariness and excess of punishment – a normative model still
largely to be realized today. The second aspect consists in the constituent character of
Beccaria’s thought. Together with other Enlightenment thinkers, he paved the way for the
political doctrine of limited public powers – the doctrine that would usher in, well
beyond the boundaries of criminal law, the contemporary and still largely unaccom-
plished constitutionalism of legal safeguards and fundamental human rights. The third
aspect of Beccaria’s relevance consists in the critical and propositional role he assigned to
philosophical reflection vis-à-vis positive law, on the ground of its axiological foundations
and a militant defence of the values inherent in the legal artifice.

Keywords
critique of the law, limited power, minimal punishment, safeguards

*In the 250th year since the publication of Cesare Beccaria’s On Crimes and Punishments in Leighorn, in order
to celebrate this classic volume, the School of Law of the University of Bologna organized, under the direction
of Renzo Orlandi, a series of talks, each one dedicated to a chapter of the book. The series took place during
the 2013–2014 academic year. Luigi Ferrajoli – the foremost Italian philosopher of law, standard-bearer of
Garantismo – was invited to give a final speech on the currency and importance of the book (on 14 April 2014).
Punishment and Society has the privilege of presenting that speech here, revised by the author, translated into
English by Filippo Valente, and edited by Dario Melossi.

Corresponding author:
Luigi Ferrajoli, Roma Tre University, Via Ostiense, 159, Roma, 00154, Italy.
Email: luigi.ferrajoli@uniroma3.it
502 Punishment & Society 16(5)

Three respects in which Beccaria is our contemporary

To mark 250 years since the publication of Cesare Beccaria’s On Crimes and
Punishments is not just to revisit a classic – if not the classic – of philosophical
reflection on criminal law: it is also to take a moral and political stance in favour of
the values and principles which in that booklet were expressed in a way at once so
radical and so revolutionary.
What are these values and principles? And what is it that makes them still
current, still revolutionary today no less than in Beccaria’s own time? What is it,
in other words, that continues to make that marvellous little book a manifesto, at
once theoretical and political, speaking not only for penal liberalism but also,
more generally, for what today we call democratic constitutionalism protective of
basic freedoms? In this essay I will point out three aspects of this remarkable
currency.
The first aspect specifically concerns criminal law. Beccaria can appropriately
be described as the father of modern criminal law, conceived by him as a system
of protections for the individual, designed to minimize punitive violence by
providing for a set of rational limitations on the arbitrary and excessive use
of repressive power. From that point on, for two-and-a-half centuries, that
model built on individual protections has informed the liberal tradition in crim-
inal law. And yet, apart from the lip homage paid to it, the model has been
largely contradicted by legislatures and by practices in criminal law even in
democratic systems. Indeed, it remains an aspirational normative model thus
far unrealized, and though it cannot be realized in full, it is still largely
unrealized.
The second sense in which Beccaria can be described as still current is even more
significant. Along with other Enlightenment thinkers, Beccaria introduced the doc-
trine of limited public power. In this respect he can, by rights, be regarded as a
father of the modern constitutionalism of basic protections – a model or paradigm
of law as a system of limits and constraints that can be extended to all powers so as
to protect all basic rights and freedoms, well beyond the protections set up to
guarantee the rights to freedom from punitive power. As I have suggested and as
I will argue, this model is by and large still waiting to be put in practice and, above
all, to be built. One such implementation and construction depends on the future of
the rule of law and of democracy. And this, it seems to me, warrants our char-
acterizing Enlightenment thought, and in particular that of Beccaria, as constituent
political thought.
Finally, the third aspect of Beccaria’s currency concerns the pragmatic angle he
gave to legal science through his philosophical reflection on the axiological foun-
dations of criminal law and, more generally, of law and of the state. This pragmatic
interest, challenged and gutted by the technical approach to law that took hold in
the early 20th century, can be appreciated in the role the philosophy of justice
assigns to legal science as a platform through which to subject law to critical
scrutiny, while envisioning projects for it, on the basis of its underlying values.
Hence the militant character of legal science as an undertaking in defence of those
Ferrajoli 503

values in which Beccaria grounds theoretical and philosophical reflection on crim-

inal law, and which his work continues to hold up for the whole of legal and
political culture.

Minimizing punishment through a reliance on safeguards

Let us begin from the first aspect of Beccaria’s thought that makes it current.
Beccaria theorized a model of criminal and procedural law built around some
safeguards or basic protections designed to minimize punitive violence.
Significant in this regard is the expression ‘minimal criminal law’, which I myself
introduced some 30 years ago in a talk I gave in Barcelona criticizing penal-aboli-
tionist doctrines (Ferrajoli, 1985), and which was subsequently taken up in my
book Diritto e ragione (Ferrajoli, 2008: 197, 325–332, 339). The expression has
since made its way into the lexicon of criminal law, and even into the public
debate, but the point is that it suggested itself to me as I looked at the many
places where Beccaria sets out his project to minimize criminal punishment.
I will recall three of these places. The first of them is the famous ‘Conclusion’ of
On Crimes and Punishments, where Beccaria (1995 [1764]: ch. 47, p. 113, emphasis
added)1 sets out his ‘general axiom’ on punishments:

In order that a punishment should not be an act of violence perpetrated by one or

many upon a private citizen, it is essential that it should be public, speedy, necessary,
the minimum possible in the given circumstances, proportionate to the crime, and
determined by the law.

The second is the philosophical contractarian theory on the foundations of the

‘right to punish’ set out in Chapter 2:

Thus it is necessity which compelled men to give up a part of their freedom; and it is
therefore certain that none wished to surrender to the public repository more than the
smallest possible portion consistent with persuading others to defend him. The sum of
these smallest possible portions constitutes the right to punish; everything more than
that is no longer justice, but an abuse. (1995 [1764]: ch. 2, p. 11, emphases added)

The third passage is in Chapter 28, which stakes out a position against the death
penalty. Here Beccaria (1995 [1764]: ch. 28, p. 66, emphases added) goes back to
the contractarian argument, holding that in ‘the sum of the smallest portions of each
man’s own freedom’ – the freedom that each individual confers on the state – there
cannot be contained the right by which ‘men presume to slaughter their fellows’;
and he asks: ‘Who has ever willingly given up to others the authority to kill him?
How on earth can the minimum sacrifice of each individual’s freedom involve
handing over the greatest of all goods, life itself?’2
Now, an extraordinary, and usually neglected, aspect of Beccaria’s thought lies
in the complex philosophico-political foundation for these theses on the need to
504 Punishment & Society 16(5)

minimize punitive violence and on the inadmissibility of the death penalty. It is to

Beccaria that we owe both of the moral principles which make up this foundation
and through which he anticipates the two main orientations of present-day moral
and political philosophy – two streams usually set in contraposition to each other
but in his thought happily spliced together: one is contractarian, utilitarian and
relativist; the other, anti-contractarian, categorical and absolute. The first principle
is the utilitarian one he states right at the outset in the introduction to On Crimes
and Punishments, namely, ‘the greatest happiness shared among the greatest number’
as the objective of any rational legislation (1995 [1764]: 7, emphasis in original)3 –
the famous formula that would then be taken up by Jeremy Bentham (1962a [1780]:
ch. 1, § 4, p. 2, 1962b [1776]: ch. 1, § 48, p. 271) and that underpins the whole of
utilitarian moral philosophy. The second principle is the categorical one that
Beccaria (1995 [1764]: ch. 20, p. 50) expressed through another pithy maxim:
‘There is no freedom when the laws permit a man in some cases to cease to be a
person and to become a thing’ – which is the no less famous maxim that Immanuel
Kant would later place at the foundation of his categorical ethics.4
The two formulas are commonly set in contrast to each other.5 They capture, as
it were, the two principles or postulates around which revolve the two main, and
divergent, strands in moral philosophy. It was, after all, on the basis of the second
formula, anticipated by Beccaria, that Kant developed his severe criticism of all
moral utilitarianisms.6 In Beccaria’s thought, however, the contradiction between
the two maxims turns out, on closer inspection, to be only apparent. On the model
he introduced – which builds basic safeguards into criminal law, and which cer-
tainly is not the Kantian model – the convicted criminal is not in any way treated as
a means to the ends of others. This line of criticism can be directed at what I have
called ‘truncated utilitarianism’ (Ferrajoli, 2008 [1989]: § 20.3, p. 251, and § 25.1, p.
325), the conception underpinning all utilitarian doctrines that justify punishment
solely as a means for preventing crimes.7 But it does not apply to the model of
minimal criminal law, on which the justification of criminal law rests not on one
justifying aim but on two such aims: to prevent not only crimes but also the unjust,
arbitrary, excessive, or informal punishment that would be meted out without such
minimal criminal law, and so not only to maximize the utility of those who abide by
the law but also to minimize the hardship imposed on those who break it.8 So it is
precisely through the constraints theorized by Beccaria – that is, through a scheme
of criminal and procedural safeguards – that punitive violence can be minimized.
These constraints serve the second justifying aim of criminal law and are set up in
the interests of lawbreakers, who are accordingly regarded not as means but as ends
in themselves. So, within the framework of a reformed criminal utilitarianism, these
limits make it possible to reconcile the two moral maxims in question, both coher-
ently anticipated by Beccaria.
So, not only is there no contradiction between, on the one hand, the contrac-
tarian utilitarianism that makes Beccaria a precursor to Bentham and, on the other,
his view of persons as ends in themselves that makes him a precursor to Kant, but
Ferrajoli 505

the former actually entails the latter. It is in that relation that lies the originality of
Beccaria’s thought and, more generally, the philosophical foundation for the model
that builds basic safeguards into the law. Indeed, as much as the social contract
may be a utilitarian conception, it is grounded precisely in the idea of basic rights –
first among them the right to life – understood as inalienable rights, that is, as rigid
clauses encapsulating the very raison d’etre for the covenant. So these rights play
an essential role in grounding, on the one hand, the idea that persons are not things
but ends in themselves and, on the other, and correlatively, the idea of law and the
state as artificial constructions, that is, as devices with which to achieve extrinsic
aims, such as that of protecting life and the other personal rights. In essence, then,
the social contract as conceived by Beccaria is the compact of coexistence setting
out that which is not subject to negotiation, alienation or exception, namely, the
life of persons, accordingly qualified by him as neither things nor means but as ends
in themselves in whose protection lies the reason and purpose for the social pact.
But how does this work? Or rather, how should we go about minimizing the
punitive violence that, with a view to protecting the criminal, realizes the second
justifying aim of criminal law? Beccaria argues that this should be achieved by
setting up criminal and procedural safeguards, a set of constraints put in place at
each of the three moments around which the power to punish revolves: these are
the punishment, the crime and the criminal process.
So, to begin with, this second aim is achieved by limiting punishments. There
are two principles that Beccaria introduces in this regard. The first of these is the
principle of necessity: ‘Every punishment which is not derived from absolute
necessity is tyrannous, says the great Montesquieu’ (Beccaria, 1995 [1764]: ch.
2, p. 10).9 From which follows, by way of a corollary, the conception of criminal
law as a measure of last resort, whose use is warranted only when there is no way
to reduce crime by means other than those of criminal law itself. In Beccaria’s
(1995 [1764]: ch. 31, p. 82) own words, ‘one cannot say that a punishment for a
crime is exactly just (meaning necessary) until the law has instituted the best
possible means in a given nation’s circumstances for preventing such a crime’.
And what would these best extra-criminal means be? Beccaria (1995 [1764]: ch.
45, p. 110) points to education above all else: ‘the surest but hardest way to
prevent crime is to improve education’. More in general, the way this would be
translated in today’s terms by saying that crime prevention depends above all on
policy: on health, education and social policy – much more effective as crime-
prevention tools than the law enforcement invoked like a magic wand by those
who engage in demagogy.
The second principle for mitigating punishment is the humanitarian one that
Beccaria (1995 [1764]: ch. 27, p. 63) puts forward by calling for ‘lenience’ in
punishment:

One of the most effective breaks on crime is not the harshness of its punishment, but
the unerringness of punishment. [. . .] The certainty of even a mild punishment will
506 Punishment & Society 16(5)

make a bigger impression than the fear of a more awful one which is united to a hope
of not being punished at all.

By the same token – he comments reprising a thesis advanced by Montesquieu

(1951 [1754]: LXXX, p. 252) on the mildness of punishments as a measure of a
country’s civility – harsher punishment can be observed to correlate with a greater
incidence of murder and slayings:

The times and places in which the penalties have been fiercest have been those of the
bloodiest and most inhuman actions. Because the same brutal spirit which guided the
hand of the lawgiver, also moved the parricide’s and the assassin’s. He decreed iron
laws from the throne for the savage soul of slaves, who duly obeyed them; and in
secluded darkness he urged men to murder tyrants only to create new ones. (Beccaria,
1995[1764]: ch. 27, p. 63)10

But what do this certainty and this minimization of punishments depend on? As
Beccaria (1995 [1764]: ch. 41, pp. 103–104) claims in one of his most compelling
pages, it depends on the certainty and minimization of their presuppositions,
namely, crimes – both minimizations responding to the principle of legality and,
even more fundamentally, to the principle of economy:

To forbid a large number of trivial acts is not to prevent the crimes they may occasion.
It is to create new crimes [. . .].

Do you want to prevent crimes? Then make sure the laws are clear and simple and that
the whole strength of the nation is concentrated on defending them [. . .]. Make sure
than men fear the laws and only the laws. Fear of the laws is salutary; but man’s fear
of his fellows is fatal and productive of crimes. Slavish men are more debauched, more
sybaritic and crueller than free men.

It is above all the principle of legality that acts as the linchpin for the entire
model. This is a principle Beccaria formulates in both of its versions, the formal
and the substantive: on the one hand we have the principle of mere legality, which
says ‘that laws alone can decree punishments for crimes, and that this authority
resides only with the legislator’ (1995 [1764]: ch. 3, p. 12); on the other we have the
principle of strict legality, which in turn rests on the principle of injuriousness,
under which ‘the one true measure of criminality is the damage done to the
nation’ (1995 [1764]: ch. 7, p. 22). Under the first principle, no one can be punished
except for an act defined in the law as a crime; under the second, the law cannot, in
its own turn, make a crime out of an act that causes no injury to others.11
Finally, the clarity and simplicity of the laws stand as the main factor limiting
discretionary punishment in the criminal process, and so as the main safeguard for
the freedoms and dignity of citizens: ‘Where the laws are clear and precise’, writes
Beccaria (1995 [1764]: ch. 14, p. 35), ‘the judge’s task is merely to discover the
Ferrajoli 507

facts.’12 Of course, a thesis so stated – like his thesis of the ‘perfect syllogism’ (1995
[1764]: ch. 4, p. 14) and, before it, Montesquieu’s image of the judge as the ‘mouth
of the law’13 – points to an ideal model, one that could never be realized and so is
utopian. And yet their greater or lesser degree of realization depends on the seman-
tics of legal language, that is, on the degree to which the language used in making
something a crime is at once clear, precise, definite and strict or peremptory. So we
should not forget that, as much as these theses may be naive and impracticable if
taken literally, what they expressed in their own time was nothing short of a revo-
lutionary principle, namely, that the strongest safeguards should be in place to
protect the person from the judge’s arbitrary despotism.
It is on these safeguards – the principles of certainty, legality, peremptoriness
and injuriousness governing the framing of crimes – that to this day are based the
core ideas underlying the guarantees embedded into the criminal process. The first
of these ideas is that of the citizen’s freedoms: ‘Every citizen’, writes Beccaria (1995
[1764]: ch. 8, p. 25) taking up another classic Enlightenment theme,

ought to believe himself able to do anything which is not against the law without
fearing any other consequences than what follows from the action itself. This is the
political creed which ought to be received by the people and preached by the magis-
trates scrupulously upholding the law. This is a sacred creed, without which there
cannot be a legitimate society [. . .].

In the second place there is the idea of the trial as an impartial fact-finding
endeavour, as opposed to a charge led against the accused. The former model
Beccaria (1995 [1764]: ch. 17, p. 46) calls the ‘true trial, the informative, which
consists in the impartial search for the facts’; the latter he calls ‘the offensive
trial’, in which the ‘judge becomes an enemy of the accused, of a man in chains
[. . .]; and he does not seek for the truth of the matter, but only for the crime in the
prisoner; he sets traps for him and, if they do not succeed, he feels it as a personal
failure, an affront to that sense of his own infallibility, which men attribute to
themselves in all matters’.14 And, in the third place, there is the separation of
powers: ‘There is, therefore, need of a third party to judge the truth of the
matter. Herein lies the need for the magistrate, whose sentences admit of no
appeal and consist in simply confirming or denying particular facts’ (1995 [1764]:
ch. 3, p. 13).15 So what we have here, in short, is the set limitations, separations and
checks and balances that make the power to punish a limited power.

Legal thought in a constituent role

This is the second, and perhaps even more important, respect in which Beccaria can
be seen as a very current thinker. It is to Beccaria, and to Enlightenment political
thought more broadly, that we owe the theoretical normative model of limited
power.16 This is a model that Enlightenment political philosophy applied to crim-
inal law, considering that the power to punish is the arena in which the relation
508 Punishment & Society 16(5)

between authority and freedom, between the state’s powers and the citizens’ rights,
can be seen to unfold in the most dramatic, violent and arbitrary fashion.17
But Beccaria did not just inaugurate theoretical reflection on criminal safe-
guards, that is, on the constraints that must be imposed on punitive despotism
so as to guarantee the freedoms and dignity of persons. The model based on limited
power, a model endorsed by the whole of Enlightenment thought, is a formal
paradigm: it therefore can be expanded so as to cover all powers and all rights,
both, and not just the power to punish or the rights to liberty. That is what hap-
pened in the historical development of the Rechtsstaat (the state based on the rule
of law), which originated as a legislative state and grew into a constitutional one.
And, above all, that is what political and legal reason suggest should happen, by
further developing the same paradigm so as to meet the challenges raised by the
new powers and the threat they pose to rights old and new: this is a paradigm I
have called garantista (or guaranteed-safeguards model) because the limitation and
regulation of power it calls for are always achieved by introducing new safeguards,
that is, new prohibitions or obligations imposed on the exercise of the different
powers, in such a way as to correlatively meet the positive or negative claims in
which each of the rights so guaranteed consists. Hence the role that under this
paradigm – introduced by Enlightenment political philosophy, and in an exemplary
fashion by Beccaria – is entrusted to politics, and even more fundamentally to legal
and political culture: a role at once critical and constructive, creating projects that
lay out a roadmap for the future. From which follows the constituent character
which can be found in Enlightenment political culture, and which makes its main
exponents – Montesquieu, Voltaire and Beccaria, and before them Thomas Hobbes
and John Locke – the true founding fathers of the modern Rechtsstaat and of
modern constitutional democracies.
I will distinguish four expansions of the guaranteed-safeguards model, all of
them inherent, as it were, in the model’s internal logical syntax, and all of them
making it topical as a fecund basis on which to chart a path to the future: the first
two, already completed, have accompanied the historical development of the
Rechtsstaat, or at least they can be described as its normative product; the other
two are instead unfolding on the theoretical plane, and though they are still very
much in the making, the trajectory is clear right from the start; all four are
entrusted to the legislature in its constituent role, with its introduction of basic
safeguards or rights as limits and constraints imposed on the different powers at
different levels, and so on the way the political process can design the functions and
institutions corresponding to those safeguards.
The first expansion is the one through which the safeguards built into the crim-
inal process to protect persons from arbitrary punishment have been complemented
with social safeguards. Safeguards of this latter kind have taken hold through the
development of a further way of regulating power, for the purpose of guaranteeing
another class of rights. This brings into being a ‘regulated power’ that is no longer
confined to the ‘limited power’ subject to the limits and prohibitions guaranteeing
the negative claims coinciding with the rights to liberty, but also includes the
Ferrajoli 509

‘constrained power’ subject to constraints and obligations to perform so as to

guarantee the positive claims coinciding with the social rights: the rights to
health, education, an adequate standard of living, government aid and social secur-
ity; this further regulated power, in other words, requires law and the state to
retreat in one respect – taking the form of the liberal minimal state and in particular
of minimal criminal law – while advancing in another, by taking the form of the
maximal welfare state.18 The tool with which to realize this further regulation of
power is once again the principle of legality: no longer confined to the negative
form that consists in limiting power – through the legislative enactment of criminal
and procedural safeguards, each of which (starting from the strict legality required
in the framing of crimes) is equivalent to a prohibition against the exercise of
punitive powers or to a limitation imposed on such powers – this principle also
takes the positive form that consists in setting up public powers, a positive form
expressed in the legislative enactment of entitlements or social safeguards (such as
health care and public education), each of which is equivalent to a constraint or an
obligation to perform imposed on the state through its government agencies.
The second expansion is the one that strengthened the Rechtsstaat by coupling
the legislative state with the constitutional state, thus marking the shift from legis-
lative to constitutional safeguards. This strengthening, too, came about through the
development of the principle of legality, a development that consisted in making
the law itself subject to the constitution, into which the fundamental rights have
been enshrined as substantive rules governing lawmaking activity.19 In the legisla-
tive Rechtsstaat, the safeguards providing for rights to liberty and social rights
depended on the legislator’s discretion or, in a democracy, on the unchecked
power exercised through majority rule. But under rigid constitutionalism, which
especially took hold with the constitutions enacted after the Second World War,
that form of government (a government of men) was suppressed by making not
only administrative and judicial activity but also legislative activity subject to the
law, and in particular to the constitutional provisions. In this way, the safeguards
paradigm based on a principle of limited and constrained power expanded so as to
cover the whole of public law and all of the state’s institutions. And since, from a
deontic standpoint, legislation can now diverge from the constitution, there also
emerges the possibility of illegitimate legislation, either by commission or by omis-
sion: on the one hand we have the antinomies, where legal rules are enacted in
violation of the limits or prohibitions correlative to the constitutionally established
rights to liberty; on the other hand we have the lacunae, or gaps, resulting from a
neglect to enact laws implementing the constraints or obligations correlative to the
social rights, likewise enshrined in the constitution; antinomies are worked out by
judicial review; lacunae are filled by passing laws implementing the rights in
question.
The third expansion, it was noted, is still underway and mostly unaccomplished.
It consists in extending the guaranteed-safeguards model beyond the sphere of the
public powers so as to cover the heterogeneous complex of private powers, starting
from the economic and financial powers. The process, in short, consists in
510 Punishment & Society 16(5)

complementing the current scheme of safeguards under public law with a scheme of
safeguards under private law. Indeed, as the term itself suggests, the Rechtsstaat has
developed only as a system of legal limits and constraints on the powers of the
state. Private powers, like the economic rights to property and freedom of contract,
have by contrast been conceived by the liberal tradition as fundamental freedoms,
in the same class with the rights to liberty, consisting of simple immunities or
faculties. They instead consist of rights as powers, whereby power is understood
as any faculty whose exercise encroaches on another’s legal sphere.20 And as
powers they must therefore be subject to the law, since legibus soluti powers are
incompatible with the Rechtsstaat. This is a question of legal grammar: the exercise
of private powers – as is found in contracts and legal transactions, and more
generally in the whole gamut of economic and financial activity – stands on a
normative level lower than the legislative level, and it stands even lower by com-
parison with the constitutional level.21 Hence the need for a scheme of private-law
safeguards and constitutional guarantees subjecting even the markets to the limi-
tations and constraints needed to protect fundamental rights. And, what is more,
this need reveals itself to be especially topical and pressing today in the face of the
unbridled supremacy of financial power and its lack of concern for rules, a suprem-
acy propped up by current free-market ideologies.
The fourth expansion is almost entirely set in the future, concerning the
development of the guaranteed-safeguards conception from a state-centred to a
supra-state model. The Rechtsstaat, the rule of law and democracy, along with the
institutions they have set up for governing and providing basic safeguards, origi-
nated and developed within national states. But in present-day globalization, the loci
of power – political and public power, and even more so economic and private power
– have found their abode across the global sphere, outside the national boundaries.
Examples are international organizations – not only the formally established ones,
like the International Monetary Fund and the World Trade Organization, but also
the informal ones such as the G8, G20, G4 and the like – and even more important in
this regard is the role played by the major players of speculative finance. This has
given rise to an asymmetry between the global or supra-state reach of the power
wielders and the local or state-centred reach of both politics and law; and in the
vacuum owed to the absence of any public supra-state law, the power wielders have
been growing increasingly strong, posing a threat not only to personal rights and
national democracies but also to environmental protection and the very survival of
humanity. Witness the ecological and nuclear catastrophes, the global economic
crises and the humanitarian emergencies incident to the increasing inequality and
abject poverty ascribable to the rampant growth of the economy and of politics.
Whence the pressing and increasingly dramatic need for a cosmopolitical scheme of
safeguards, a model to be implemented by constructing a public sphere capable of
standing up to the new global powers.
To be sure, all these expansions of the guaranteed-safeguards paradigm can
seem quite removed from the criminal-safeguards model set out by Cesare
Beccaria. But the paradigm’s logical syntax is the same, for it all revolves
Ferrajoli 511

around the idea of constraints. These are no longer broadly configured only as
limitations on the exercise of public power but are (a) constitutionally imposed
on legislation, rather than just being legislatively imposed on the exercise of admin-
istrative and judicial functions; (b) applicable to private, economic and financial
power, rather than only to public power; (c) binding on supra-state and global
powers, rather than just on state powers; and (d) set up to guarantee social
rights and basic goods, rather than just the rights to liberty and the freedom
from arbitrary punishment. In all cases, the secret to the guaranteed-safeguards
paradigm lies in the happy ambivalence of the safeguards it brings in. For we have
here constraints and limitations of any kind at any level, coupled with techniques
for protecting and satisfying everyone’s fundamental rights – techniques that pol-
itics must introduce under constitutional and international charters.

A militant legal and political philosophy

Having sketched out the paradigm, we can now turn to the third respect in which
Beccaria can be regarded as an extraordinarily current thinker. The guaranteed-
safeguards paradigm is very much in crisis today, in all of its dimensions and at
every level. The crisis affects the social safeguards, on account of the anti-social
policies the unruly powers of finance are imposing on the states. Then, too, the
undoing of labour law and the unchecked development of financial markets have
all but wiped out all types of supra-state and private-law safeguards. But also in
crisis is the scheme of criminal safeguards, owing to the ascendancy of repressive,
anti-safeguard policies promoted by a populism that promises enhanced security by
cracking down on crime, coupled with authoritarian cultures constantly invoking
an ever-present state of high alert. The crisis involves the paradigm’s external
philosophical foundations as outlined by Beccaria, but it also involves its internal
legal aspects as set forth in all of our constitutional charters of rights, at both the
state and the supra-state level.
What Beccaria’s book has to offer in dealing with this crisis is the suggestion that
current reflection on law and politics should play a pragmatic role at once critical
and forward-looking, criticizing existing law while constructing a vision for law in
the future. It is therefore a ‘militant book’, as Perfecto Andrés Ibáñez (2011: 10)
has described it in his introduction to the splendid Spanish edition he has edited
(Beccaria, 2011: 10). It is so in the first place because it is not a work on positive
criminal law but on the normative theory and philosophy of law, setting out the
moral and political foundations on which criminal law can be justified. This legal-
philosophical angle has been misunderstood or, worse, challenged in much of the
writing on criminal law. As Andrés Ibáñez (2011: 16–18) points out, the misunder-
standing comes by way of those who have ‘doctored’ the work in putting it through
various editions and versions, refashioning it into a treatise,22 and so into a literary
genre that, in the eyes of the jurist, can lay claim to greater scientific soundness. But
that reading of the book has even been strenuously challenged in Italy by the
proponents of the technico-legal approach to law, which takes a clear stand against
512 Punishment & Society 16(5)

any philosophical or critical contamination of the strictly ‘technical’ and ‘scientific’

kind of knowledge in which (on this conception) criminal science is supposed to
consist. One need only recall in this regard the inaugural lecture the jurist Arturo
Rocco (1910) gave at the University of Sassari on 15 January 1910, through which
the ‘technico-legal’ method made its debut in the criminal sciences.23 And there are
also the initial pages of the monumental Trattato di diritto penale italiano, written
by the most authoritative Italian criminalist of the 20th century, Vincenzo Manzini
(1933).24
But there is also another reason why Beccaria’s philosophy of criminal law can
be characterized as a militant philosophy (a militancy that, after all, runs through
the whole of Enlightenment political philosophy):25 that is because of the civic
passion, polemic force and moral indignation that drive his criticism of criminal
law and of contemporary punitive practices – from the death penalty to torture,
from the violent methods of the inquisitorial and offensive trial to the useless
amplification of criminal norms, from excessive punishment to the obscurity of
the laws – as judged against the benchmark of the rational foundations on which
his philosophy rests the right to punish. As Perfecto Andrés Ibáñez (2011: 11) has
remarked, Beccaria’s reflections ‘cannot grow old’ in this respect: they are still very
much of the time, considering how criminal law has degenerated through its base
practices and even through the doctrines that have been evolved to legitimize those
practices, even in countries with a mature democracy. Witness the laws of exception
passed in several democracies to fight terrorism (starting from the USA PATRIOT
Act, enacted on 26 October 2001), the horrible tortures carried out at the
Guantanamo detention centre and the Abu Ghraib prison, the extraordinary ren-
dition programmes and, on the principled side, Alan Dershowitz’s theses on the
legitimacy of torture in ‘exceptional’ cases and the doctrine of the enemy’s criminal
law that Gunther Jakobs put forward in support of applying the logic of war to
bring terrorists and organized crime to justice (Krasmann, 2007).
There has never been a moment when Beccaria’s teaching, and the example he
offered as a civically engaged philosopher, ceased to be topical in standing up to
these horrors. And I will go even further: they are more topical today than they
have ever been. In fact, the need for a critical legal culture capable of laying out a
vision for the future, and driven by a militant attitude in favour of human rights, is
being felt today not only on a moral and political level but also on a legal and
scholarly one. Indeed, having been positivized into rigid constitutions, the prin-
ciples of reason and the moral foundations of law advanced by Beccaria, and more
generally by Enlightenment political philosophy, have gone from political prin-
ciples external to positive law to legal principles internal to it and sitting atop
the entire legal construction. The divide between justice and legality, between
ethico-political values and actual practices, has to a large extent morphed into a
divide internal to law itself, with its constitutional principles no longer adequately
reflected in regular legislation and judicial practice. The standards to which dis-
course on law is being held as a condition for its scientificity have thus been turned
on their head. These are the purely descriptive, value-neutral standards of the old
Ferrajoli 513

technico-legal method, which is no longer scientifically tenable. Indeed, the task of

subjecting the law in force to critical scrutiny and envisioning a project for future
law is no longer the exclusive province of political philosophy or the philosophy of
justice: as an endeavour that is not just civic but also scientific, this task is also
entrusted to positive legal science, which can no longer gloss over but must instead
be on the lookout for violations of the constitution – whether they be by commis-
sion (giving rise to antinomies) or by omission (giving rise to lacunae) – and
must promote the effort to fix those antinomies and lacunae. Hence the militant
commitment, no longer in virtue of a moral or political option but as a scientific
habitus, a role the whole of legal culture, and not just in criminal law, is required to
take on under the constitutional paradigm with all of its expansions as discussed in
the previous section.26
For this reason, the best homage we can pay to Cesare Beccaria today, 250 years
after his On Crimes and Punishments, consists in taking up his teaching, thus
pursuing the normative model of regulated power – a model he set out with respect
to criminal law, but which has since been expanded to the whole of law and which
has in large part been constitutionalized – and using that model as a standard by
which to critically assess current law (not just criminal law) critically and as a guide
in the project of designing a political system capable of regulating all powers and
making them functional to the need to guarantee everyone’s rights. At stake is the
future not only of criminal law but also of democracy and of our very survival and
peaceful coexistence.

Notes
1. Beccaria C (1776) Dei delitti e delle pene, Leighorn edition, XLVII, p. 280. The text
used here will be that of the facing-page Spanish (2011) translation – De los delitos y
de las penas, prefacio de Piero Calamandrei, edición bilingue al cuidado de Perfecto
Andrés Ibáñez, texto italiano establecido por Gianni Francioni. Madrid: Trotta –
published in the 1984 Edizione Nazionale delle Opere di Cesare Beccaria. The same
original text is also published in the facing-page French (2009) translation – Des
de´lits et des peines / Dei delitti e delle pene. Ed. and trans. Audegean P, texte italien
établis par Francioni G. Lyon: ENS.
2. A little further he comments thus: ‘It is not the intensity, but the extent of a pun-
ishment which makes the greatest impression on the human soul. For our sensibility
is more easily and lastingly moved by minute but repeated impressions than by a
sharp but fleeting shock’ (Beccaria, 1995 [1764]: ch. 28, p. 67). And a little earlier he
claims: ‘The certainty of even a mild punishment will make a bigger impression than
the fear of a more awful one which is united to a hope of not being punished at all’
(1995 [1764]: ch. 27, p. 63).
514 Punishment & Society 16(5)

3. The principle is taken up again by Beccaria in Chapter 41: ‘It is better to prevent
crimes than to punish them. This is the principal goal of all good legislation, which is
the art of guiding men to their greatest happiness, or the least unhappiness possible’
(Beccaria, 1995 [1764]: ch. 41, p. 103).
4. The maxim is found in Kant’s (1996 [1797]: pt I., § 49, lett. E, p. 105) Metaphysics of
Morals: ‘For a human being can never be treated merely as a means to the purposes
of another or be put among the objects of rights to things [. . .]’. And shortly after
that: ‘[. . .] a human being cannot be used merely as a means by any human being
(either by others or even by himself) but must always be used at the same time as an
end. It is just in this that his dignity (personality) consists [. . .]’ (1996 [1797]: pt. II, §
38, p. 209).
5. Philippe Audegean (2009: 97–100) recalls the many criticisms addressed at Beccaria
by commentators arguing that the two formulas contradict each other, or at least
suggesting an incongruous mash-up between the contractarian utilitarianism inher-
ited from Hobbes (expressed in the first formula) and the categorical moralism
expressed in the second formula.
6. Writes Kant in his Metaphysics of Morals: ‘Punishment by a court (poena forensis)
[. . .] can never be inflicted merely as a means to promote some other good for the
criminal himself or for civil society. It must always be inflicted upon him only
because he has committed a crime. For a human being can never be treated merely
as a means to the purposes of another or be put among objects of rights to things: his
innate personality protects him from this, even though he can be condemned to lose
his civil personality. He must previously have been found punishable before any
thought can be given to drawing from his punishment something of use for himself
or his fellow citizens. The law of punishment is a categorical imperative, and woe
unto him who crawls through the windings of eudaemonism in order to discover
something that releases the criminal from punishment or even reduces its amount by
the advantage it promises, in accordance with the pharisaical saying, ‘‘It is better for
one man to die than for an entire people to perish’’ [John 11:50]. For if justice goes,
there is no longer any value in human beings’ living on the earth’ (Kant, 1996 [1797]:
pt I, § 49, lett. E, p. 105, emphases in original). But it also bears pointing out the
explicit criticism that Kant directs at Beccaria a short while later (1996 [1797]: pt I, §
49, lett. E, p. 108).
7. Of course, the first justifying aim (crime prevention) is one that Beccaria (1995
[1764]: ch. 12, p. 31) himself points out, claiming ‘that the purpose of punishment
is not that of tormenting or afflicting any sentient creature, nor of undoing a crime
already committed. [. . .] The purpose [. . .] is nothing other than to prevent the
offender from doing fresh harm to his fellows and to deter others from doing
Ferrajoli 515

likewise.’ Beccaria (1995 [1764]: ch. 1, p. 9, ch. 6, p. 19) thus calls punishments
‘tangible motives’ and ‘political obstacles’ designed to counteract crimes.
8. See Ferrajoli (2008 [1989], § 20.2, p. 248, § 23.4, p. 324; and in general ch. 6,
pp. 314–344).
9. And a few paragraphs later he clarifies that ‘by ‘‘justice’’ I mean nothing more than
the restraint necessary to hold particular interests together, without which they
would collapse into the old state of unsociability. Any punishment that goes
beyond the need to preserve this bond is unjust by its very nature’ (Beccaria, 1995
[1764]: ch. 2, p. 11). The passage by Montesquieu that Beccaria refers to is in De
l’esprit des lois (Montesquieu, 1979 [1748]: vol. I, liv. XIX, 14, p. 468).
10. The passage proceeds thus: ‘As punishments become harsher, human souls which,
like fluids, find their level from their surroundings, become hardened and the ever
lively power of the emotions brings it about that, after a hundred years of cruel
tortures, the wheel only causes as much fear as prison previously did. If a punishment
is to serve its purpose, it is enough that the harm of punishment should outweigh the
good which the criminal can derive from the crime [. . .]. Anything more than this is
superfluous and, therefore, tyrannous’ (Beccaria, 1995 [1764]: ch. 27, pp. 63–64). The
same thesis is then reprised in the closing chapter, arguing ‘that the severity of pun-
ishments ought to be relative to the state of the nation itself. Stronger and more easily
felt impressions have to be made on a people only just out of the savage state. [. . .]
But as souls become softened by society, sensitivity grows. And as it does so, the
severity of punishments ought to diminish [. . .]’ (1995 [1764]: ch. 47, p. 113).
11. The two principles, under which legality is at once a conditioning and a conditioned
criterion, are both set forth in Article 5 of the 1789 De´claration des droits de
l’homme et du citoyen: ‘La loi n’a le droit de défendre que les actions nuisibles à
la société. Tout qui n’est pas défendu par la loi ne peut être empêché’ [‘Law can
only prohibit such actions as are hurtful to society. Nothing may be prevented
which is not forbidden by law’] (The Avalon Project: Documents in Law,
History and Diplomacy).
12. The text proceeds thus: ‘But if the search for the evidence of a crime calls for skill
and ability, if the presentation of the result calls for clarity and precision, then
forming a judgement on the basis of this resulting evidence requires only simple and
ordinary good sense, which is less misleading than the learning of a judge who is
accustomed to wanting to find criminals and who reduces everything to an artificial
system derived from his studies’ (Beccaria, 1995 [1764]: ch. 14, p. 35). Even more
explicitly, Pietro Verri required that the judge ‘ascertain the facts: He must find the
truth, and look for it sedulously, and form a good understanding of what is the
516 Punishment & Society 16(5)

case; and, with that done, the law does the rest, that is, it commands how things
should be (Verri, 1854 [1765]: vol. 1, p. 170, my translation).
13. ‘Les juges de la nation ne sont que la bouche qui prononce les paroles de la loi; des
êtres inanimés qui n’en peuvent modérer ni la force ni la rigueur’ (Montesquieu,
1979 [1748]: vol. I, liv. XI, 6, p. 301). ‘But the judges of the nation are [. . .] only the
mouth that pronounces the words of the law, inanimate beings who can moderate
neither its force nor its rigor’ (Montesquieu, 1989 [1748]: pt 2, bk 11, ch. 6, p. 163).
‘De cette façon, la puissance de juger, si terrible parmi les homes [. . .] devient, pour
ainsi dire, invisible et nulle’ (Montesquieu, 1979 [1748]: vol. I, liv. XI, 6, p. 296). ‘In
this fashion, the power of judging, so terrible among men [. . .] becomes, so to
speak, invisible and null’ (Montesquieu, 1989 [1748]: pt 2, bk 11, ch. 6, p. 158).
Very much in the same vein is Beccaria (1995 [1764]: ch. 4, pp. 14–15): ‘The judge
should construct a perfect syllogism about every criminal case: the major premise
should be the general law; the minor, the conformity or otherwise of the action with
the law; and the conclusions, freedom or punishment. [. . .] Nothing is more dan-
gerous than the popular saw that we ought to consult the spirit of the law. This is a
bulwark which, once breached, sets loose a flood of opinions.’
14. It is clear that this not a descriptive account but a prescriptive statement bringing
together a set of canons of professional ethics: the idea that the accused is not an
enemy and judicial activity is not a war on crime; the intellectual honesty that
should underpin any investigative activity, requiring the judge to exclude external
conditioning and preconceived notions and biases in interpreting the law and
assessing the evidence introduced in court; the requirement of independent judge-
ment; and the ‘external’ or ‘impartial spectator’ attitude in considering the interests
defended by the parties and the factual reconstructions and interpretations they
advance.
15. Indeed, the judge has no other ‘task’ than ‘that of enquiring whether a given man
has committed an unlawful act or not’ (Beccaria, 1995 [1764]: ch. 4, p. 14), to this
end relying on ‘a fixed code of laws, which must be followed to the letter’ (1995
[1764]: ch. 4, p. 15). After all, the ‘sovereign, as the representative of society, may
only frame laws in general terms which are binding on all members. He may not
rule on whether an individual has violated the social pact, because that would
divide the nation into two parts: one, represented by the sovereign, who asserts
the violation of the contract, and the other, represented by the accused, who denies
it’ (1995 [1764]: ch. 3, p. 12).
16. On this question, see Delia and Radica (2012) and Ippolito (2012). In this latter
source, see in particular the first chapter, titled (in translation) ‘The Enlightenment
paradigm of limited power’, where the author calls into question ‘the link between
the Enlightenment and absolutism conjured up by the mishandled historiographical
Ferrajoli 517

label ‘‘enlightened despotism’’’ and situates Enlightenment political thought ‘within

the legal and philosophical frame of modern constitutionalism, in whose develop-
ment the Enlightenment century played a decisive role’ (Ippolito, 2012: 21, my
translation).
17. Recall that in the passage previously quoted from The Spirit of the Laws (note 13),
Montesquieu describes the power to punish as ‘terrible’, and the Marquis de
Condorcet describes the same power as the most ‘odious’ of all: ‘Le despotisme
des tribunaux est le plus odieux de tous’ (Condorcet, 1847 [1789]: 155).
18. On the mutual entailment between the positive and negative claims in which all
rights and duties consist and the corresponding prohibitions in which their safe-
guards consist, see Ferrajoli (2007: vol. I, § 2.3, pp. 151–157, §§ 3.5 and 3.6, pp. 194–
201, §§ 10.10 and 10.11, pp. 635–644 and §§ 11.9, pp.772–776).
19. On this characterization of fundamental rights constitutionally established as sub-
stantive rules on lawmaking, see Ferrajoli (2007: vol. I, § 11.1, pp. 729–731 and §§
12.10–12.18, pp. 890–937, as well as Ferrajoli, 2013: 37, 77–78, 95, 113).
20. This is the notion of legal power I set out in Ferrajoli (2007: vol. I, § 10.1, pp. 587–
593, in definition D10.1).
21. Here, too, I will refer the reader to Ferrajoli (2007: vol. I, § 2.4, pp. 157–161, §
10.10, pp. 635–638 and §§ 11.4–11.6, pp. 742–759, as well as to Ferrajoli, 2013: 46–
48, 144–146, 151).
22. In his Introducción, Andrés Ibáñez (2011: 16–18) points out the most notorious
such doctoring, which crept into the Italian editions, too, and which stuck for a
long time: its author was the abbot Morellet, who published the work in 1766 under
the title Traite´ des De´lits et des Peines, traduit de l’italien d’apre`s la troisie`me e´dition,
revue et corrige´e et augmente´e par l’auteur, avec des additions de l’auteur qui n’ont
pas encore paru en italien (the place of publication indicated in the front matter is
Lausanne, though it is actually Paris). Also mentioned by Andrés Ibáñez is the
more recent edition doctored in Spain by the criminalist Quintiliano Saldaña, El
Derecho Penal (De los delitos y de las penas), published in Madrid in 1930 by
Libreria y Casa Editorial Hernando. As Andrés Ibáñez reports, Saldaña justified
his work ‘by arguing that ‘‘from a technicist mindset, that edition necessarily had to
be ordered’’, giving its parts an arrangement that could not have been the one
chosen by Morellet, who ‘‘was not a technicist of criminal law’’ (nor, after all,
was Beccaria), ‘‘and so the French edition, like the editio princeps, was lacking in
coherence and systematicity. [. . .] So arranged’’, Saldaña concludes, ‘‘Beccaria’s
book is promoted into the class of the Treatise: It becomes a short treatise of
criminal law, a text that could very well do service in a foundational course devoted
to the teaching of this subject.’’’ In the interesting note titled ‘Primeras ediciones de
518 Punishment & Society 16(5)

Dei delitti e delle pene en castellano’, serving as a foreword to De los delitos y de las
penas (Beccaria, 2011: 31–40), Andrés Ibáñez lists 45 editions of the work, no less
than 14 of which bear the title Tratado de los delitos y de las penas.
23. In this writing (Rocco, 1910: 500), a frontal attack is delivered on the Italian clas-
sical school, which from Beccaria to Francesco Carrara, ‘pretended to study crim-
inal law outside the frame of positive law; it deluded itself into believing it could
forge a criminal law different from the one laid down in the positive laws of the
state’, thus abandoning itself ‘to the unquenchable appetite for criticizing the law
and reforming the criminal laws in force’ (1910: 499). It is in order to fight these
‘inordinate reformist tendencies’ (1910: 499) that Arturo Rocco set out his meth-
odological programme: ‘Herein lies the main, if not the exclusive, task and function
of the science of criminal law: It is to provide a technico-legal account of the
positive criminal law in force; to attain a scientific, and not merely empirical,
knowledge of the system of criminal law as it is, in virtue of the laws that govern
us’ (1910: 521, my translation throughout).
24. It was a scathing attack that in the very first pages of his celebrated treatise
Vincenzo Manzini unleashed against the philosophy of law, taking aim in particu-
lar at its attempt to uncover the foundations of criminal law: ‘It seems completely
superfluous for our investigations to engage in the strictly philosophical introduc-
tions with which the criminalists of the 18th and 19th centuries were wont
to premise their treatises. Searching for the so-called ultimate foundations and
the notion of law [. . .] is no longer an appropriate undertaking today for a discip-
line like ours, so distinctly social, positive and grounded in good sense’ (Manzini,
1933: vol. I, § 3, p. 6, my translation). And yet, 30 years earlier, in a brilliant
philosophical essay cast in a clearly liberal and Enlightenment mould, Manzini
took on the problem of the foundations of criminal law, and in so doing he
railed against a pronouncement quite undistinguishable from the one he himself
would make 30 years later: ‘If we are to go by what Carnevale says, the state
punishes simply because it punishes, and just as no need is felt to justify the enforce-
ment of civil law, so it is utterly superfluous to point out the principles of reason on
which criminal sanctions are founded. The foregoing statement’, Manzini (1899:
vol. IX, pt III, p. 60, my translation) quipped, ‘would be much more appropriate as
an inscription on the gates of a barracks than it would adorning the propylaea to
one of the monuments of the ‘‘critical school’’ of criminal law.’ The explanation for
this about-face, in view of the time span between these two writings, is offered by
Manzini (1931: vol. I, p. 63; my translation) himself: ‘No philosophy that fails to
reflect the mainstream consciousness and opinion has ever had any influence on
social relations, and it never will.’
Ferrajoli 519

25. The Enlightenment: A Militant Philosophy is (in translation) the title that Dario
Ippolito (2012) gave to his book investigating Enlightenment thinking on criminal
law.
26. On this change in the epistemological status of legal science, particularly as con-
cerns its stepping into a pragmatic role under the constitutional paradigm, see
Ferrajoli (2013: § 2.8, pp. 81–89).

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