Tuesday, September 02, 2014

Cesare Beccaria, Crimes and Punishments, On Proportionality

This is related in part to a post from Max regarding proportionality in war, which seems to be a selective mantra these days.  So where did the concept of proportionality in retribution originate?  I can't answer this, but can provide a few snippets from history:

"Of the Proportion between Crimes and Punishments.

It is not only the common interest of mankind that, crimes should not be committed, but that crimes of every kind should be less frequent, in proportion to the evil they produce to society.  Therefore the means made use of by the legislature to prevent crimes should be more powerful, in proportion as they are destructive of the public safety and happiness, and as the inducements to commit them are stronger.  Therefore there ought to be a fixed proportion between crimes and punishments."

 - An Essay on Crimes and Punishments, by Cesare Beccaria

So far so good.  The proportionality should be weighed in terms of the overall damage that the crime does and as a deterrent against more such crime.  The proportion needed to cause deterrence is the part that can become really extreme.  Cesare notes that many laws are on the books from ancient times, and the changes to society will necessarily change the proportions of punishment that is needed for deterrence.

At this point it would be appropriate to catalog crimes and punishments throughout history to look at how this is done, which Cesare fails to do.  For example, something from the Roman code of Justinian:

"The penalty for injuries under the law of the Twelve Tables was a limb for a limb, but if only a bone was fractured, pecuniary compensation being exacted proportionate to the great poverty of the times."

The law of the twelve tables was developed about 450BC and according to Livy derives from the earlier Greek legal systems.  This reminds us immediately of the Biblical command:

"If a man injures his neighbor, just as he has done, so it shall be done to him:  fracture for fracture, eye for eye, tooth for tooth; just as he has injured a man, so it shall be inflicted on him." - Leviticus 24:19-20

This is related to injuries whether accidental or done in the passion of a moment.  A problem with this is that those who commit crime in a premeditated manner would immediately realize that if they are caught, the worst that happens is that they must return whatever they took.  But likely they won't be caught, thus, probabilities favor engaging in theft.  Thus, premeditated theft is treated differently in the Bible:

"If a man steals an ox or a sheep and slaughters it or sells it, he shall pay five oxen for the ox and four sheep for the sheep." - Exodus 22:1

Thus, proportionality is really what is needed to achieve deterrence when premeditated crime is involved.

The Christian view is that we shouldn't get so hung up on earthly belongings that we are obsessed with retribution.  A few years later and we will be dead and gone, while all our belongings are the property of someone else.

5 comments:

Max Coutinho said...

Hi Looney,

Thanks for the mention.
So, let me see if I understood your conclusion:

"Thus, proportionality is really what is needed to achieve deterrence when premeditated crime is involved."

If an enemy plans to destroy your house and kill everybody in it, you have the right to equally destroy his house and kill everybody in it, so that others learn the lesson and feel less compelled to repeat the same mistake?

If I am mistaken, please correct me - I'd appreciate it. Then I will make my comment.

Bravo! This article was marvellously produced :)

Cheers

Looney said...

Thanks for your comment. This is my first foray into this subject!

From what I read of Beccaria, he would require that a crime be committed, rather than merely planned. The reason for this is that he wants to avoid random prosecutions. He would want deterrence to be of the same kind as the crime, but with the caveat that the deterrence should not preclude reform. The last part of his formula is that deterrence shouldn't be of a sort that it creates an incentive to prosecute whether a crime has been committed or not.

Of course he was living in a mono-culture where (modified) Catholic church values dominated,.

Max Coutinho said...

Looney,

My pleasure.
And thank you for the explanation. It would be interesting to know what Beccaria would think of the term "proportionality" in today's multi-cultural environment. As you so well pointed out, he lived in a "mono-culture where (modified) Catholic church values dominated" so his theory is limited (as I suspect it was even back then).

The 19th century was rife with wars so perhaps he was weary of them and of their barbaric aspect and tried to find a balanced solution to conflicts?

Today, the proportionality principle in warfare points to a mere suggestion of military advantage (e.g. hiding even though not shooting etc), therefore it would go against Beccaria's theory I suppose.

Very interesting. I will be back to read your most recent post.

Looney said...

Beccaria lived in the 18th century.

The proportionality principle reminded me of the original fights between Mo and Mecca. In the first battle, Mecca was defeated and lost 70 men. The second battle Mecca won, but they stopped after they had avenged themselves of the 70 who had been lost in the previous battle. Mo, of course, was not one to call things even, so Mecca was eventually reduced to religious slavery.

Max Coutinho said...

Looney,

You're right (he died in 1794). My apologies, I was thinking about something else.

Still, 18th century was also rife with wars:

- 1700-1721 Great Northern War
- 1701-1714 War of Spanish succession
- 1702-1715 Camisard Rebellion
- 1710- 1711 Turkish-Russian War
- 1727- 1729 Anglo-Spanish War
- 1735-1739 Russo-Turkish War
- 1789-1792 Russo-Turkish War...again
etc

Mo lol lol...loved that.
I hear you on that perfect example.

Cheers