Preconditions of Emergence: Crime and Criminality

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Crime: its definition and punishment Cesare Bonesana, Marquis of Beccaria, first published his? Dei delitti e delle pene in 1764 anonymously, for fear of persecution. His book attacked the very foundations of the existing criminal justice systems. It proclaimed the equality of all before the law, denounced the unlimited powers vested in the authorities, demanded the abolition of torture and of the death penalty, called for measures to protect the accused before and during trial, and affirmed the necessity of graduating punishments according to the crime. These revolutionary proposals were to be acclaimed by philosophers and ministers, philanthropists and businessmen, princes and emperors alike. Dei delitti was translated and discussed throughout Europe; its author was provided with a chair of political economy at the University of Milan, and appointed councillor of state. What were these revolutionary proposals so obviously acceptable to all enlightened rulers?

Inspired by the writings of Montesquieu, and accepting Rousseau's social contract theory, Beccaria founded the right to punish on the need to protect each individual's rights and freedoms from possible usurpation by others. A set of written laws equally applicable to all members of society allowed them to rise above their state of primitive barbarity and be protected, by the rule of law, from the violent rule of the mightiest. Punishments should be analogous to the crime and administer just a little more pain than the amount of pleasure derived from criminal behavior. Jeremy Bentham, in An Introduction to the Principles of Morals and Legislation (1780), developed this principle into an elaborate "felicity calculus": the utilitarian system determined appropriate punishments according to the harm done to society, the fundamental rule being to protect "the greatest happiness of the greatest number" from individual abuse. The classical view of crime, punishment, and society was gradually accepted as the basis for criminal codes throughout Europe, starting in France with the Declaration of the Rights of Man (1789), the Constitution of 1790, and the Codes of 1791 and 1810, and eventually including the Prussian (1851), Danish (1866), Belgian (1867), and Italian (1889) codes, among others. How could the same principles comply to such various political and social organizations?

From the outset it is clear that they could be made to serve the varied interests of the ruling classes. As outlined by Leon Radzinowicz in Ideology and Crime, their adoption allowed "enlightened despots" to check the power of both the clergy and the aristocracy (through the selective abolition of certain superstitions and privileges) while enhancing their favor with the people (through the elimination of torture and the softening of penalties). The middle classes equally profited from the abolition of aristocratic privilege, and were further protected from the whims of absolute power (in the forms of torture, lettres de cachet, and the like). In fact, the new criminal justice systems gave considerable powers to the middle classes, whose members acted as J.P.s, jurors, and M.P.s able to enact new laws as dictated by (their) changing needs. Thus, different measures could be taken for middle- and working-class crimes. Fines, demotions, or dismissals were judged punishment enough for what has come to be known as white-collar crime, while prison sentences, often qualified with hard labor, were considered necessary for the repression of "ordinary crime" (such as vagrancy, thefts, minor assaults, drunkenness, and disorderly conduct), the infractions of the "lower classes," which were processed without jury in the special circuits of police courts and the summary justice of the Petty Sessions. The Master and Servant Act of 1823, for example, provided different forms of punishment for breach of contract: employers could only be prosecuted in civil law, whereas employees were subject to criminal prosecution.

In theory, however, the criminal justice system was set apart from economic conditions, reified into a set of logical relations between equal individuals: one of the most important functions of the new legal discourse was to erase all class divisions by establishing a blind social process in which position and wealth—but also starvation and misery— played no role. In this process, classical principles acquired their universality: they could answer the needs of human nature itself, saving the rights of man from barbarity, only insofar as social organizations were not acknowledged.

The works of the Classical School have traditionally been remembered as the voice of compassion and humanity rising against cruel systems of repression. Some historians, however, have pointed out that their main objective was not so much to punish less but to punish better, more swiftly, and through rational procedures because the old methods were simply not working that well any more. In the face of the death penalty, English juries often refused to find the accused guilty, even when their verdict blatantly contradicted evidence. The chances of being executed when sentenced to death were also constantly diminishing. Reformers like Samuel Romilly wanted to substitute "swift and certain punishment" for this "lottery of justice." The system of "suspended terror" could only work in closely knit societies, where mechanisms of personal benevolence and submission could operate: in large cities like London or Paris the discretionary powers of magistrates to pardon or convict no longer held the same force of example, and imprisonment or release became a game of chance for the accused. Among the most ardent supporters of reform were the members of the middle class involved in manufacturing, commerce, and banking, who were eager to find new and more efficient ways of protecting their property, and sent petitions to Parliament to that effect. The landowners' resistance to reform was eventually overcome; by 1861 capital offenses had been reduced from 200 to 4: murder, treason, piracy, and the destruction of arsenals and dockyards. In France the Revolution reduced the number of capital offenses from 115 to 32.

Although Beccaria and Bentham had proposed a series of punishments analogous to the crime (for theft, restitution and fines, for assault, corporal punishment, and so on), these varied forms were neglected in favor of imprisonment as the universal mode of sanction. However, the establishment of state penitentiary systems was not accomplished without a series of struggles and political...