Dei Delitti e delle Pene [On crimes and punishments], 1764
§ 6 Proportionality between crimes and punishments
Given the necessity of men coming together, given the contracts that necessarily result from the very conflict of private interests, there is a spectrum of disorders, of which the first degree consists of those that directly destroy the society, and the last degree [consists] of the least possible injustice done to its private members. Between these extremes are included all actions opposed to the public good, which are called crimes, and all of them proceed from the highest to the lowest by imperceptible degrees. If geometry could be applied to the infinite and obscure combinations of human actions, then there would have to be a corresponding spectrum of punishments, which would go from the strongest to the weakest; but it will suffice for the wise legislator to signal the main points, without disturbing the order, by not assigning the punishments of the last degree to the crimes of the first. If there were an exact and universal scale of punishments and crimes, we would have a likely and common measure of the degree of tyranny and liberty, of the level of humanity or cruelty of the various nations.
Any action whatsoever that is not encompassed within the two limits cited above cannot be called a crime, or punished as such, except by those who have a personal interest in calling it such. The uncertainty of these limits has produced among nations a morality that conflicts with legislation; more recent legislations that mutually exclude one another; a multitude of laws that expose the wisest person to the most rigorous punishments, and thus render vague and wavering the terms vice and virtue, and thus engender the uncertainty about one's own existence that produces the lethargy and the fatal drowsiness in the bodies politic. Anyone who reads the codes and annals of nations with a philosophical eye, will find that almost everywhere the terms vice and virtue, good citizen and offender change with the revolving of the centuries, not by reason of changes occurring in the circumstances of countries, and thus in constant conformity with the common interest, but by reason of the passions and errors that successively influence the various legislators. Quite often he will see that the passions of one century become the basis of the morality of future centuries, that the strong passions, daughters of fanaticism and enthusiasm, after having become weak and pinkish with age, so to speak, which reduces physical and moral phenomena to equilibrium, have become little by little the prudence of the age and the useful instrument in the hand of the powerful and the shrewd. In this way, the most obscure notions of honor and virtue were born, and they are so obscure because they change with the revolving of time that causes names to outlive things, they change with the rivers and the mountains that are often the borders, not only of physical, but of moral geography.
If pleasure and pain were the motivators of sentient beings, if reward
and punishment had been destined by the invisible Legislator to be included
among the motivations that push men to undertake even the greatest works,
then that contradiction, the less noticed the more common it is, would
not have developed, out of the inexact distribution of these, that punishments
punish the crimes that they themselves engendered. If equal punishment
is applied to two crimes that unequally offend society, then men will no
longer find a strong obstacle to committing the greater crime, if they
find a greater advantage attached to it.
[Previous chapter 25 criticizes laws that provide for the confiscation
of the property of banished "criminals" by the State, rather than by their
family members, which is what Beccaria advocates.]
§ 26 On the spirit of the family
These grievous and authorized injustices [namely confiscation by the State of property rightly belonging to family members of a convict] were approved by even the most enlightened men, and exercised by the freest republics, so that society was deemed rather as a union of families than as a union of men. Say there were one hundred thousand men, or twenty thousand families, each of which composed of five persons, including the head of household who represents it: if the association is done by families, there would be twenty thousand men and eighty thousand slaves; if the association is one of men, then there will be one hundred thousand men and no slaves. In the first case there will be a republic, and twenty thousand little monarchies that comprise it; in the second the republican spirit will breathe not only in the squares and assemblies of the nation, but even within the walls of private homes, where a great portion of the happiness or misery of men resides. In the first case, as the laws and customs are the effect of the habitual sentiments of the members of the republic, that is, of the family heads, the monarchic spirit will be introduced little by little into the republic itself; and its effects will be slowed only by the opposing interests of each person, but not by a sentiment inspiring liberty and equality. The spirit of the family is a spirit of minutia and is limited to minor facts. The regulatory spirit of the republic, the patron of general principles, sees the facts and condenses them into major classes that are meaningful to the majority. In the republic of families, the sons remain under the power of the head, as long as he lives, and are constrained to wait until his death to attain an existence dependent on the laws alone. Accustomed to begging and to cringing during their youthful and vigorous age, when their feelings are less modified by that timidity of experience that is called moderation, how will they resist the obstacles that vice always puts in the way of virtue in the languid and failing age, in which the despair of seeing the fruits opposes any vigorous changes?
When the republic is one of men, the family is a subordination not by command, but by contract, and the sons, when maturity has freed them from natural dependence based on weakness and a need for education and defence, will become free members of the State, and will subject themselves to the head of the family in order to participate in the benefits of family, like free men in the great society. In the first case, the sons, i.e. the largest and most useful part of the nation, are at the discretion of the fathers, and in the second case there is no other bond commanded than that sacred and inviolable bond to provide one another mutually with needed help, and that of gratitude for benefits received, a bond that is destroyed not so much by the malice of the human heart, as by a poorly understood subjugation imposed by the laws.
Such contradictions between the laws of family and the fundamentals
of the republic are a fertile source of other contradictions between domestic
and public morality, and thus they cause a perpetual conflict to grow in
the soul of every man. The first inspires subjugation and fear, the second
courage and liberty; the former teaches to restrict beneficence to a small
number of persons without spontaneous choice, the latter to extend it to
every class of men; the former commands a continual sacrifice of oneself
to a vain idol, called the good of the family, which is often not
the good of any of its members; the latter teaches to serve one's own advantage
without violating the laws, or stimulates one to sacrifice oneself to the
fatherland with the bonus of fanaticism, which precedes action. Such contrasts
make men refuse indignantly to follow virtue, which they find undeveloped,
confused, and at that distance that grows when physical and moral objects
are obscured. How many times a man, turning to look at his past actions,
ends up astonished to find himself a scoundrel! To the extent that society
increases, each member becomes a smaller part of the whole, and the republican
sentiment becomes proportionally smaller, if the laws do not take care
to reinforce it. Societies, like human bodies, have their circumscribed
limits, and if they grow beyond them, their economy is necessarily disturbed.
It seems that the size of a state must necessarily be inversely proportional
to the touchiness of those who comprise it, otherwise, if both of them
grow, good laws will find an obstacle to preventing crimes in the very
good that they have produced. A republic that is too vast cannot save itself
from despotism except by subdividing itself and uniting itself into so
many federative republics. But how can one obtain this? By a despotic dictator
who has the courage of Sulla, and as much genius to build as Sulla had
to destroy. If such a man is ambitious, the glory of all ages awaits him;
if he is a philosopher, the blessings of his citizens will console him
for the loss of authority, or else he will become indifferent to their
ingratitude. To the extent that the feelings that unite us to the nation
are made weaker, the feelings for the objects that surround us will become
stronger, and thus under the strongest despotism, friendships are most
durable, and the ever mediocre virtues of family become the most common
virtues, or rather the only ones. From this, anyone can see how limited
the views of the majority of legislators have been.
§ 31 Crimes difficult to prove
In view of these principles, it will appear strange to those who do not consider that reason has almost never been the legislator of nations, that crimes that are either the most atrocious or the most obscure and fanciful, that is, those whose unlikelihood is greatest, are proven by the weakest and most ambiguous conjectures and evidences; as if the laws and the judges were interested not in finding the truth, but in proving the crime; as if condemning an innocent person were not a greater danger, the more the likelihood of innocence outweighed the likelihood of the offence. The majority of men lack the vigor necessary for both great crimes and great virtues, of which it seems that the former always go along contemporaneously with the latter in those nations that are sustained more by the activity of the government and passions conspiring against the public good than by their masses or the consistent quality of their laws. In the latter, weak passions seem more apt to maintain than to improve the form of government. From this we draw an important conclusion, that great crimes in a nation do not always prove its deterioration.
There are some crimes that are at the same time frequent in society and difficult to prove, and in these crimes the difficulty of proof takes the place of the probability of innocence, and the harm of impunity is much less significant, the more the frequency of these crimes depends on causes other than the danger of impunity; the time of investigation and the length of the statute of limitations must likewise be reduced. And in fact adulteries, and Greek lust, which are crimes difficult to prove, are those that according to traditional principles admit of tyrannical assumptions, near-proofs, half-proofs (as if a man could be half-innocent or half-guilty, i.e. half-punishable and half-acquittable), where torture exerts its cruel power over the person of the accused, the witnesses, and even over the entire family of an unfortunate person, as some doctors teach with iniquitous coldness who offer themselves to judges as arbiters of norms and laws.
Adultery is a crime that, from a political standpoint, gets its force and direction from two causes: the variable laws of men and that strongest of attractions that pushes one sex toward the other; similar in many cases to the gravity that moves the universe, for like it it diminishes with distance, and if one of them modifies all the movements of bodies, in the same way the other modifies nearly all those of the soul, as long as its term lasts; dissimilar in that gravity comes into a state of rest with obstacles, while the former gains greater force and vigor as the obstacles themselves become greater.
If I were having to speak to nations yet deprived of the light of religion, I would say that there was another considerable difference between this crime and the others. This crime arises from the abuse of a constant need universal to all of humanity, a need that is prior to, even the foundation of society itself, whereas the other crimes that destroy it have an origin determined more by momentary passions than by a natural need. Such a need seems, to those who know history and man, to be always equal to a constant quantity in the same climate. If this is true, then such laws and customs are useless, even pernicious, that seek to diminish its total amount, because their effect is to burden a portion of their own needs and those of others, while on the other hand, those laws and customs would be wise that, so to speak, by following the easy inclination of the plane, divided and branched off the total into so many equal and small portions, so that aridity and flooding were prevented uniformly in every portion. Conjugal fidelity is always proportional to the number and freedom of marriages. Where inherited prejudices reign, where household authority joins and selects them, there gallantry secretly breaks their bonds to the shame of popular morality, whose job it is to declaim against the effects, while pardoning the causes. But there is no need for such reflections for those who, living under true religion, have more sublime motivations that correct the strength of natural effects. The act of such a crime is so instantaneous and mysterious, so covered by that very veil that the laws have imposed, that necessary but fragile veil, that increases the value of the thing instead of lessening it, the occasions are so easy, the consequences so ambiguous, that the legislator is in a better position to prevent it than to correct it. A general rule: in any crime that by its nature must go unpunished in the majority of cases, the punishment becomes an incentive. It is a property of our imagination that, if difficulties are not insurmountable or too difficult for the sluggishness of the soul of every man, then they excite the imagination more vividly and they magnify the object, because they are basically so many shelters that prevent the roving and fickle imagination from leaving the object and, because they cause it to exceed all proportion, it attacks more strongly the pleasant part toward which our soul hurls itself more naturally than toward the painful and grievous one, from which it flees and removes itself.
The Attic venery that is so severely punished by the laws and so easily subjected to the torments that conquer innocence, has its foundation less in the needs of isolated and free men than in the passions of sociable men and slaves. It takes its strength not so much from the surfeit of pleasures, as from that education that begins by rendering men useless to themselves so as to make them useful to others, in those houses in which ardent youth is confined, where since there is an insurmountable barrier to any other trade, the entire vigor of developing nature is consumed in a way that is useless for humanity; in fact it brings on premature old age.
Infanticide is likewise the effect of an inevitable contradiction in which a person is placed who has fallen due to weakness or violence. Anyone who finds herself facing an inevitable choice between infamy and the death of a being incapable of feeling pains, how will she not prefer the latter to the inevitable misery to which she and the unfortunate offspring would be subjected? The best way of preventing this crime would be to use efficacious laws to protect weakness against tyranny, which exaggerates those vices that it cannot cover with the mantle of virtue.
I do not claim to diminish the just horror that these crimes deserve:
but, by pointing out their sources, I believe I am right in drawing from
them a general consequence, namely that the punishment of a crime cannot
exactly be called just (that is to say, necessary), until the law has adopted
the best possible means to prevent it, given the specific circumstances
of a nation.