- Arbitrariness, confusion and cruelty were the attributes of criminal law in all European
countries in the 18th century
- Justinian Digest still operating in 18th-century Europe
- some of the new laws were added to old ones
- lack of rational codes and scales of punishments was cause of arbitrariness in the decision of
judges
- lex talionis
- Bavarian Code 1751: punishment for witchcraft and heretics, punishment by mutilation,
retained branding with a hot iron, the pillory, and flogging
- England: death penalty was incredibly frequent for all kinds of crimes, even theft
- a woman in 1785 was sentenced to death for stealing from a shop a gauze
- women either strangled or burnt
- what happened to Giordano Bruno happened everywhere in Europe
- torture, corporeal punishments
- imprisonment was a very rare form of punishment everywhere (for detention and not for
punishment)
- people were hanged for having neglected the payment within 24 hours of a fine of 30 lire
- influence of theology on law
- accusatorial vs inquisitorial procedure (England was more accusatorial)
- no counsel was allowed to the accused
- widespread use of torture: in Roman times only slaves, gradually became general custom
- French Ordinance: every presumption constituted half-proof which was sufficient to warrant
the administration of tortures
- 18th-century England: accusatorial procedure allowed trial to be confrontative, oral and public
Break:
- Montesquieu’s Spirit of the Laws (1748)
- right proportion between crimes and punishments
- necessity of death penalty
- Voltaire’s Dialogue between a client and his lawyer (1751)
- Rousseau and Hobbes > idea of social contract
Beccaria:
- punishment: in forming human societies, people sacrificed a part of their individual liberty,
the least possible portion, in order to enjoy the remainder in security and quiet: “The aggregate
of these least possible portions constitutes the right of punishment; all that is beyond this is an
abuse and not justice, a fact but not a right”
- if punishments were useless and out of proportion, this would be contrary to reason, justice
and nature of the social contract itself
- laws need to be clearly expressed for more people to understand them
- separation between religion/theology and law
Reading of Crimes and Punishments:
