The issue of death penalty as a component of a just system in Cesare Beccaria’s doctrine

Abstract

In the treaty entitled On crimes and punishments, Cesare Beccaria openly addresses the issue in question by asking “whether the death penalty is really useful and just in a well-organised state?”. Should one assume that the social contract theory provided an ideal (model) depiction of the process of establishment of a just constitution, then the question posed by Becarria will be linked to the issue aimed to determine if death penalty may in fact be an element of a system legitimised via the social contract theory. Beccaria combines the argumentation based on the social contract theory with utilitarianism. The proclamation of uselessness of a given punishment, i.e. its failure to contribute to the happiness of the greatest possible number of people will be interpreted as its illegitimacy, as members of a given society would not be able recognise it as justified and acceptable. The adaptation of the principle of usability is not equivalent to the rejection of the principle of guilt. It seems that Beccaria anticipated the differentiation between the principle justifying a particular system and the principle functioning within that system, so emphasised by H. L. A. Hart and J. Rawls. The first principle would set the goal, whereas the other would constitute the rule of distribution. If we assume that utilitarianism embodies the principle justifying punishment due to its support of social interest, whereas retributivism the rule saying that the punishment should be dependent on the committed criminal deed, with its size proportional to the importance of that deed, then utilitarianism would constitute a principle determining the system’s goal, while retributivism – the principle of distribution applied within this system. Beccaria argued that death penalty was inconsistent with the social contract concept and could not be regarded as a punishment of indisputable usefulness. Allowing the state to decide about human life on the grounds of its competence resulting from the said social contract is too high a price for security. It may additionally bear negative consequences in the situations of its abuse by the state. Instead of contributing to the improvement of the law and order and the assurance of security, it may lead to quite an opposite situation: the brutalisation of customs and a threat coming from the state.