On the Civilized vs Savages, reconsidered.

Is it possible, without shuddering with horror, to read in history of the barbarous and useless torments that were coolly invented and executed by men who were called sages? Who does not tremble at the thoughts of thousands of wretches, whom their misery, either caused or tolerated by the laws which favoured the few and outraged the many, had forced in despair to return to a state of nature; or accused of impossible crimes, the fabric of ignorance and superstition; or guilty only of having been faithful to their own principles; who, I say, can, without horror, think of their being torn to pieces with slow and studied barbarity, by men endowed with the same passions and the same feelings? A delightful spectacle to a fanatic multitude!...

The punishment of death is pernicious to soci­ety, from the example of barbarity it affords. If the passions, or necessity of war, have taught men to shed the blood of their follow creatures, the laws which are intended to moderate the ferocity of mankind, should not increase it by examples if barbarity, the more horrible, as this punish­ment is usually attended with formal pngeantry. Is it not absurd, that the laws, which detect and punish homicide, should, in order to prevent mur­der, publicly commit murder themselves? Cesare Bonesana di Beccaria [1764] An Essay on Crimes and Punishment (96-97 & 104-105).

I had seen the name Beccaria mentioned in the context of predecessors to Bentham's utilitarianism and legal reform. And I recalled (with the help of Google) that in Discipline and Punishment, Foucault mentioned him as an exemplar of the advocate of a new political economy of punishment (more efficient, but also more unbounded, etc.); in fact, Foucault uses the very same passage I quote above to treat Beccaria as an advocate of the 'principle of moderation.' I had never read his Essay. But because I am preparing (with Sandrine Berges) an edition of Sophie de Grouchy's Letters on Sympathy, which offers a program of legal and penal reform, I decided to read Beccaria. His writing is forceful, with a vigorous sense of outrage and drama; rather than focusing on legal minutiae, he writes in the vernacular of an eighteenth century philosophe, who is clearly familiar with Hobbes, Montesquieu, Helvetius, Diderot, and if not Hume then Condillac or Adam Smith.  So, one is constantly hearing echoes of works already familiar, but applied and given vivacity, if I may, to urgent and existential matters of life and death.

The passages above are parts of his attacks on torture and the death penalty. (Amongst other things, he is also against anonymous accusations, and he favors a clear separation between judge and state prosecutor.) He is uncompromising against torture. And the only exception he grudgingly grants is one during the state of emergency: "it can only be necessary when a nation is on the verge of recovering or losing its liberty; or in times of absolute anarchy, when the disorders themselves hold the place of laws." (It's grudging because he relentlessly focuses on likely abuses of any law.)

As an aside, and to forestall misunderstanding, Beccaria's point is not to promote quiet, capital punishment without spectacle. For such punishment would defeat the purpose of punishment which is almost entirely meant to deter other people's future crimes. And so any punishment needs to be visible to the rest of society. This leads him, in fact, to justify a form of imprisonment that he (quite rightly) calls slavery--the prisoner needs to be seen to work. (His moral psychology justifying this is clearly indebted to Hume or a Humean.) 

Now, as regular readers know I am rather ambivalent (see here), and often opposed to the savage/barbarous vs civilized distinction. Historically, it helps justify colonial projects (from Ireland to the rest of the world) in terms of a paternalistic and violent extension of civilization.The distinction is not merely of historical interest: to this day it is re-activated by moralists to help justify belligerent acts against (let's stipulate for the sake of argument, hostile) 'non-western' forces.* 

For Beccaria, there are two kinds of savage/barbarous conditions. One is the state of nature, which he sometimes calls 'anarchy' or 'state of independence.' For him we escape the state of nature by being under authority of tolerable law or by way of contract. The conditions of this social contract deviate interestingly from Hobbes's account (which clearly inspired it)--about which some other time more. But, and this is the second kind of barbarism, a lot of existing or past states are de facto wholly barbarous or partially barbarous/savage. So, for example, while there are clear, non-trivial republican strains in his thought, he writes about the "Romans" (while praising them for their abhorrence of torturing citizens), that they were "in many respects barbarous, and whose savage virtue has been too much admired." (59)

That is to say, in Beccaria's hands the opposition between barbarism vs (law-governed) civilization is brought home and applied to Europe. And Europe comes out looking very barbarous which incentivizes criminals to become more violent and criminal and, thereby, (note the first passage above) returns to the state of nature. (So, for Beccaria, the state of nature is, as Spinoza suggests, possible within advanced society.) This, in turn, only benefits rulers who can justify further repression and savagery (etc.)

In fact, incentives are crucial to his general approach. I'll offer two examples of this: first, in his treatment of credibility of evidence, he writes: "the credibility of his evidence will be in proportion as he is interested in declar­ing or concealing the truth. Hence it appears,  how frivolous is the reasoning of those, who reject the testimony of women on account of their weakness; how puerile it is, not to admit the evidence of those who are under sentence of death, because they are dead in law; and how irrational, to exclude persons branded with infamy: for in all these cases they ought to be credited, when they have no interest in giving false testimony." (48) Witnesses are crucial to his general penal reform because he attacks oaths, torture, and duels as means toward establishing the truth in law-courts. The inclusion of women as credible witnesses is especially notable, because in general Beccaria is a defender of a modernized patriarchy. By this I mean, that he uses republican and social contract reasoning to attack the paternal tyranny over the household in order to create masculine equality (which excludes women).**

Second, there is a passage, that echoes an extremely familiar Machiavellian trope adopted by a whole variety of eighteenth century writers from Hume to Madison (recall Hirschman [who misses, I think, the significance of Beccaria]), "by opposing one passion to another, and opinion to opinion, a wise legislator puts an end to the admiration of the populace." (84)

Let me wrap up. Beccaria holds up a mirror to his European readers, who think of themselves as progressive, embracing mathematical sciences, and enlightened. What he shows is savage barbarism. But unlike say, Swift or Sade, he does so not to undermine the self-conception of the project of enlightened humanity (in different ways), but to encourage his readers to adopt reforms that may help the mirrored reality live up to its professed ideals.  

 

*Why not give up on the distinction; in part, this post is a response to that concern.

**The passage is worth quoting: 

Let us suppose a nation, composed of an hundred thousand men, divided into twenty thousand families of five persons each, including the head or master of the family, its representative. If it be an association of families, there will be twenty thousand men, and eighty thousand slaves; if of men, there will be an hundred thousand citizens, and not one slave.  In the first case we behold a republic, and twenty thousand little monarchies, of which the heads  are the sovereigns ; in the second, the spirit of liberty will not only breathe in every public  place of the city, and in the assemblies of the nation, but in private houses, where men find the great­est part of their happiness or misery. (80)