Running head: ORIGINS OF THE RIGHT TO PUNISH

Beccaria: Origins of the Right to Punish

James Bain
University of Alabama

ORIGINS OF THE RIGHT TO PUNISH

Beccaria: Origins of the Right to Punish

Cesare Beccaria, in his influential book On Crimes and Punishments (1764/1963), sets out,
what he sees as, the origins of mans right to punish his fellow man. For Beccaria, laws are seen
as a type of unstated social contract, in which each individual in a society sacrifices a portion of
his or her personal freedoms for the greater good (Beccaria, 1774/1963). However, these
sacrifices are not readily surrendered, as Beccaria stresses that a person has never given up any
of his or her personal liberties for the greater good itself, but only given up out of necessity, in
order to maintain order within the society (Beccaria, 1774/1963). This necessity that Beccaria
speaks of arises as groups of individuals grow larger, and as a result their needs become more
complex. Without such laws, these groups of people would fall into chaos, and their personal
liberties would potentially be useless (Beccaria, 1774/1963).
Beccaria (1774/1963) admits, however, that a societys merely possessing this unstated social
contract is not sufficient for the prevention of an individuals despotic spirit, which is in every
man, from plunging society into its original chaos (p.12). Punishment is, therefore, necessary
to ensure compliance with the social contractlaws (Beccaria, 1774/1963). An interpretation of
Beccaria by David P. Young simplifies Beccarias conception of a person that does not follow
this social contract as someone who gains the benefits of the law without yielding to the
obedience of it, and therefore deserves punishment (Young, 1983). Nevertheless, perhaps
fittingly for his time, Beccaria presupposes the administrators of the laws to be the ruling class.
He even goes so far as to describe it as a true right of the sovereign to be the punishers of crime
(Beccaria, 1774/1963).
As a whole, Beccarias contention for the origin of the right to punish is convincing. His
explanations of how the foundations of law came about, however unsupported they may be, are
compelling to say the least. It is intuitive to think of people agreeing to give up some of their
freedoms in exchange for safety. Even today, societies continue to enacts laws that restrict

ORIGINS OF THE RIGHT TO PUNISH

citizens freedoms under the agreement that said laws will increase the overall public good.
However, it does not seem to be as intuitive, as Beccaria believes it to be, for the sovereign to be
the architects of what is to be considered law. The mere fact that this contention can be
questioned, conceptually, rules out the possibility of its being a true right. Moreover, Beccaria
(1774/1963) characterizes people as inherently egoistic and his assertion that, No man ever
freely sacrificed a portion of his personal liberty merely in behalf of the common good (p. 11),
all but rules out the popular notion of altruism, the existence of which can easily be argued for or
against (Kant 1785/1949).
Discussion
Beccarias argument laid out in the second chapter of On Crimes and Punishment for the right to
punish is a valid one. His conclusion, that people do in fact have the right to punish, follows
from his premises and his terminology used to advance his position is clear. Nevertheless, his
position is at the very least questionable and arguably unsound. Beccaria relies on a couple of
fairly liberal assumptions, which many may find questionable (as discussed in the previous
paragraph), in the advancement of his position. Also, another premise that he takes for granted is
the chaos that, Beccaria claims, would naturally result, due to the corrupt nature of man, in the
absence of laws (Beccaria, 1774/1963). It may be the case that chaos would result in the absence
of a set agreement about which, and how much, of our liberties to sacrifice in the name of the
common good, but it also could turn out to, in fact, be more beneficial to the common good to
not have the liberty restricting laws in place. Beccaria gives his readers nothing to rule out this
possibility.
References
Beccaria, C. (1963). On crimes and punishments (H. Paloucci, Trans.). New York: MacMillian.
(Original work published 1764)
Kant, I. (1949). Fundamental principles of the metaphysics of morals (T. Abbot, Trans.).

ORIGINS OF THE RIGHT TO PUNISH

Upper Saddle River, NJ: Prentice Hall (Original work published 1785)
Young, D. B. (1983). Cesare Beccaria: utilitarian or retributivist? Journal of Criminal Justice
11(4), 317-326.