Enlightened ideas applied to criminal law: the idealization of the law the law

parliament, the separation of powers and the submission of all State bodies to the law, understood as the expression of the general will, constitute the basic elements of the emerging liberal rule of law.²¹⁷

1.2.2 Enlightened ideas applied to criminal law: the idealization of

that only conducts previously described as offences in the law could be punishable.

Similarly, he claimed that all crimes and punishments should be established by the legislative, excluding intermediate powers or judicial decisions: “The laws only can determine the punishment of crimes; and the authority of making penal laws can only reside with the legislator, who represents the whole society united by the social compact.”²²³

The parliament would establish in the law all the conducts that society considers necessary to repress, but as well the procedural guarantees needed to ensure a fair trial. Accordingly, he established that “The law should therefore determine the crime, the presumption, and the evidence sufficient to subject the accused to imprisonment and examination”.²²⁴ Regarding punishments, Beccaria considered that they should be clearly established in a previous law. Therefore, “No magistrate (…) can, with justice, inflict on any other member of the same society punishment that is not ordained by the laws”.²²⁵ In the same vein, “No magistrate, (…), should increase the punishment already determined by the laws”.²²⁶ Therefore, the role of the judges is significantly restrained, limited to the strict application of what has been previously determined by law.

Enlightened legal thinkers also established a set of basic requirements for criminal laws. The laws defining crimes and punishments could no longer have unwritten character, as previous customary criminal norms, since due to their non- written nature its content might not be as clear, precise or stable as statutory norms.²²⁷ Similarly, if in general laws were to be the expression of the general will articulate through a democratically elected parliament, criminal laws could no be an exception.

Only laws issued by a parliament could establish crimes and punishments and therefore, customary or other non-written legal norms were not longer considered valid sources of criminalization or punishment.

(Aix-en-Provence, Presses universitaires d’Aix-Marseille, 2004); Prieto Sanchís, La Filosofía Penal de La Ilustración, 97–98; Eugenio Raúl Zaffaroni, ‘La influencia del pensamiento de Cesare Beccaria sobre la política criminal en el mundo’, Anuario de derecho penal y ciencias penales 42 (1989): 521–52; Truyol Serra, Historia de la filosofía del derecho y del Estado. Tomo 2: Del Renacimiento a Kant, 315–16.

223 Beccaria, An Essay on Crimes and Punishments, 12.

224 Ibid., 56.

225 Ibid., 13.

226 Ibid.

227 Ibid., 16.

In the same vein, criminal law should be precise, clear and general, and therefore, applicable to all citizens, excluding exceptions or regulations for particular cases. ²²⁸ Last but not least, the law defining a conduct as criminal and establishing the associated penalties should be already in force at the time of commission. As a reaction to former abuses and legal uncertainty, enlightened ideas had as a fundamental objective that individuals could know beforehand the consequences of their actions.

Therefore, for any punishment to be applied, it was required a previous law clearly defining the criminal action and the consequences it would carry. Coherently, such law had to be accessible, understandable and well known by all citizens.

Before that period, all criminal theories were grounded on retributive justice, conceiving punishment as an end in itself justified by its inherent axiological value.²²⁹ Retributive penalties were based on three religious ideas: revenge, expiation and rebalancing punishment and crime. Even though these ideas have never been completely abandoned in criminal law, during the Enlightenment they were replaced by an utilitarian notion of punishment.²³⁰ Penalties were only considered as necessary means to achieve the utilitarian goal of preventing future crimes and therefore, penalties not contributing to this objective were excluded.²³¹ The utilitarian understanding of punishments significantly contributed to the formation and development of the principle of legality. In fact, the emergence of the principle and the recognition of numerous guarantees cannot be understood only based on the aim to rationalise the punitive power of the State. It responded as well to the new utilitarian rationales and functions given to criminal law at the time.

The definition of certain conducts as criminal and the establishment of punishments was understood as a threat deterring individuals from performing such behaviours, what today is known as the general deterrence theory.²³² This theory was developed as such by Feuerbach some years later, but some of the fundamental ideas

228 Desportes and Le Gunehac, Droit pénal général, 28; Marta Sosa, ‘Aut Dedare Aut Judicare, Crimen de Lesa Humanidad y Corte Penal Internacional’ (Madrid, Universidad Carlos III de Madrid, 2013), 20.

229 Ferrajoli, Derecho y Razón. Teoría Del Garantismo Penal, 253–54.

230 During the 19^th century retributive theories were recovered by two secular versions. (i) Kant's concept of penalties as ethical retributions justified by the moral value of the infringed criminal law. (ii) Hegelian concept of punishment as an opposing violence justified by the need to restore the legal order. As explained in Ferrajoli, 254.

231 Remote antecedents of criminal utilitarianism can be found in Plato, Aristotle and Epicurus as analysed in Ferrajoli, 259.

232 For a comprehensive analysis of the content, emergence and development of the general deterrence theories, see Ferrajoli, 274.

could already be found in the thinking of Beccaria.²³³ This author considered that the purpose of punishments “is no other than to prevent the criminal from doing further injury to society, and to prevent others from committing the like offence.”²³⁴ Accordingly, punishments and the mode of inflicting them “ought to be chosen, as will make the strongest and most lasting impressions on the minds of others, with the least torment to the body of the criminal.”²³⁵ This way, Beccaria alleged that “crimes will be less frequent, in proportion as the code of laws is more universally read, and understood; for there is no doubt, but that the eloquence of the passions is greatly assisted by the ignorance and uncertainty of punishments.”²³⁶

As it seems evident, the deterrence theory was of great importance for the development of the principle of legality, particularly concerning legal certainty.²³⁷ In order to have a deterrence effect, criminal law should be accessible and understandable for all individuals, and the crimes and punishments should be defined in previous laws in a precise and clear manner. As well, influenced by the utilitarian ideas and the humanism of the Enlightenment, and following the aim of rationalise the punitive power of the State, French revolutionaries abolished the crimes of conscience, or inner crimes, and only considered punishable those conducts threatening social order.²³⁸ Similarly, punishments were established in a rational manner and depending on the gravity of the crime.