Critique of Cesare Beccaria's On Crimes and Punishments - Research Paper Example

“On Crimes and Punishments”: Analysis and Modern Critique In 1764 Cesare Beccaria published the first full work on penology and the theories behind it. "On Crimes and Punishments” promotes the humane sentiments of the author, and his appeal for what he sees as a rational approach to punishment based on complex social and political theories. Citing Beccaria, he negatively describes theories of punishment and the laws supporting them throughout history as “the tool of the passions of some…” practices that “…have arisen from an accidental and temporary (and expedient) need.” (Beccaria, p 8) In short, theories of punishment and laws supporting them are not rationally conceived. This paper analyzes three chapters from the work within the context of personal opinion, modern research and positions. The chapters are sequential, since the ideas expressed in the first compliment and illuminate the next, thus more coherent arguments can be made and positions defended. III Consequences In II, The Origin of Punishment and The Right to Punish, Beccaria concludes with a statement that assumes punishments, unless appropriate to the offense, go beyond the protection of society (and the social contract) and are therefore unjust. (Beccaria, p 13) He does not illuminate on the definition of which punishments are appropriate to which offenses but assumes society instinctively knows. This is all vague. Punishments, he contends, become more just as they insure the overall protection of society, a point on which most would agree. Modern research by Frase supports the notion along with Beccaria’s statement that practices (in punishment) “…have arisen from an accidental and temporary (and expedient) need.” (Beccaria, p 8) In examining modern trends in sentencing, Frase discovered “similar recent trends (e.g., toward increased severity, particularly for violent, sex, and drug offenders).” (Frase, p 259) These trends, it might be assumed, are a product of public outrage. An interesting philosophical twist occurs in Chapter III, Consequences, as the author proposes some rather convoluted theories supporting the idea that “No magistrate, who is part of society, can, with justice, inflict punishments upon a member of the same society to which he belongs.” (Becarria, p 14) In Beccaria’s world, the magistrate’s role is relegated to “affirmations or denials of particular facts.” (Beccaria, p 14) This entire discussion culminates in the (to me, irrational) conclusion as paraphrased: that even if the results of law enforcement and the judicial system seem to work, and society is generally happy with them, they are still to be discounted because they are not just under Beccaria’s theory of who should be deciding what when it comes to punishment. As Frase reminds, “Scholars often describe or promote sentencing rules and practices as being more “rational,” “fair,” or “appropriate,” without considering the normative premises that underlie these value judgments.” (Frase, p 260) IV Interpretations of the Laws “Judges in criminal cases cannot have the authority to interpret laws, and the reason, again, is that they are not legislators.” (Beccaria, p 14) Earlier Beccaria asserts that only those elected by society as makers of the law can interpret it. What follows here is his assertion that this can be done only by “...the living society, or from the sovereign representing it, who is the legitimate depositary of what actually results from the common will of all.” (Beccaria, p 15) However, while seeing all of this as once again vague and for me, a bit too “just the facts” without any human intervention, a point he makes regarding judges and interpretations does have relevance. Beccaria asserts, “Nothing can be more dangerous than the popular axiom that it is necessary to consult the spirit of the laws.” ( Beccaria, p 15) For Beccaria, nothing is anathema to true justice and adherence to the social contract than “remote effects of false principles rooted in a nation.” (Beccaria, p 16) These principles are interpreted by judges with social or political “agendas.” In this I tend to agree and believe this tendency makes laws that favor certain groups over others. When President Obama in describing his ideal Supreme Court candidate said he preferred someone who would consider the “spirit of the law” as well at its letter, the statement disturbed many constitutional conservatives, who saw his ultimate choice, Judge Sonya Sotomayor, as just such a candidate. Sotomayor, at the hearings at least, appeared in agreement with Becarria from a response given to a question reported by Rodriquez in the Washington Post. “I can only explain what I think judges should do, which is judges can't rely on what's in their heart. They don't determine the law. Congress makes the laws.” (Sotomayor vs Obama, Rodriquez, 2009) Becarria believes any other position leads to a tyranny of “petty preferences,” taking the position one step further: “I would, indeed, be most fearful if the spirit of tyranny were in the least compatible with the spirit of literacy. (Beccaria, p 17) Modern research finds this position somewhat lacking, and I agree that while defensible, it is unrealistic. Farley, in his paper on interpreting the law, concedes, “Interpretation is a complex process, based on murky forces, exposed to some extent in institutions, habits and conventions, which are often poorly understood even by the person charged with the act of interpreting.” (Farley, p 685) Yet, he proposes “law and interpretation are inseparable.” Any attempt to administer justice without the tempering effect of interpretation amounts to an act of pure reason that can just as well be performed by a machine. This appears contradictory to humane sentiments Beccaria puts forth in other parts of his essay. V Obscurity of the Laws Beccaria begins this brief but insightful chapter with the following: “If the interpretation of laws is an evil, another evil, evidently, is the obscurity that makes interpretation necessary.” (Beccaria, p 17) Analyzed, this means that laws, as guidelines by which a society lives, must be understood and not the provenance of a few. Beccaria further proposes that, “When the number of those who can understand the sacred code of laws and hold it in their hands increases, the frequency of crimes will be found to decrease.” (Beccaria, p 17) I can not find current research to support this, but on face value, it would seem logical. As anyone who has ever been involved in the legal system knows, an understanding and comprehension of laws as written can be an impossible task for the average citizen, leaving its interpretation in the hands of judges and lawyers, or as Beccaria refers to them, “a handful of men.” (Beccaria, p 17) While the author refers more to the uneducated masses of his time, today the modern application of Beccaria’s suggestion (complaint, really) holds. Goldstein, who seems to favor Beccaria’s view, encourages Supreme Court Justices to better coordinate their opinions, write them clearly and “...ensure that the Court's public rendering of the Constitution is in a form that can be understood.” (Goldstein, p 111). While Goldstein calls for clarity, modern sociologists and criminology researchers Carrabine, et al, admit that obscurity in the law is an ongoing issue. “....although our main focus... is indeed the existing laws, we also include an array of areas that are not quite so clearly defined by the current law: crimes against human rights, environmental crimes, and hate crimes.” ( Carrabine, et al, p 3) The notion that a defendant has any chance whatsoever to secure justice without a lawyer speaks volumes regarding Beccaria’s position. References Beccaria, Cesare. On Crimes and Punishments. Trans. Paolucci, Henry. Bobbs-Merill, Indianapolis and New York, 1963. Questia Media America, Inc. www.questia.com. Carrabine, et al. Criminology: A Sociological Introduction. London and New York: Routledge, 2004. Farley, Anthony Paul. The Dream of Interpretation.University of Miami Law Review, Vol.57, 2003. Boston College Law School Research paper No. 2003-01. Available at SSRN: Http://ssrn.com/abstract=775066. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=775066. Goldstein, Joseph. The Intelligible Constitution: The Supreme Court's Obligation to Maintain the Constitution as Something We the People Can Understand. New York: Oxford Press, 1992. www.questia.com Rodriguez, Eva. “Sotomayor v. Obama.” Washington Post: Voices, July 14, 2009. http://voices.washingtonpost.com/postpartisan/2009/07/sotomayor_v_obama.html Tonry, Michael and Frase, Richard S. eds. Sentencing and Sanctions in Western Countries. Oxford: Oxford University Press, 2001. www.questia.com. Read More