A refusal to accept the death penalty is inseparable from a notion of justice inherited from the Enlightenment and, more particularly, the thoughts of the Tuscan philosopher Cesare Beccaria. An analysis of the first case of abolition in history and its repercussions in France.

In 1764, Cesare Beccaria, an Italian scholar, jurist and philosopher, wrote an essay called “On Crimes and Punishments”. Published anonymously, it quickly spread across Europe which was then in the grip of the Enlightenment. In France, Diderot and Montesquieu were particularly struck by what they read – it was the basis for the first principles of modern criminal law. By basing himself on solid rationalism, the author developed the necessity for a judicial system independent of religious power and defended the idea that society can only be made safer through the prevention of crimes, particularly through education. Instead of the arbitrary and spectacularly brutal punishments inflicted by most monarchies, he preferred a prevalence of the law to enable the guilty to pay their debt to society. It therefore appeared logical for Beccario to be firmly opposed to the death penalty. Firstly for a moral reason: laws which fight against homicide cannot commit it. Then for a more pragmatic reason which he explains thus:

It is not the terrible but temporary spectacle of the death of a scelerate but the long and dreadful example of a man deprived of his liberty who, transformed into a beast of burden, repays the society he injured through his labour which will truly curb crime.

Here, on the one hand Beccaria opposes the death penalty, which he considers a “public assassination”, but on the other hand uses very harsh words to describe the guilty, those scelerates. It was perhaps this very pragmatic position, combining prevention and severity, which led to the success of the author’s ideas. In 1786, the Grand Duchy of Tuscany became the first State in the world to abolish the death penalty. King Leopold II, advised by Beccaria, took responsibility for this historic reform. Although historians say that the Tuscany of that time was not greatly affected by criminality, the sovereign nevertheless encountered the scepticism of several of his advisers, something which led him to use several arguments. The first was to explain that man cannot inflict death since he is not authorised to inflict it on himself. Then, he used a more utilitarian point of view, based on “Crimes and Punishments”, to prove that forced labour constitutes a more effective punishment than the death penalty. Criminals are still prevented from being able to do more harm, they serve as an example to the public and the spectacle of putting someone to death, which could lead to feelings of compassion, is avoided.

In France, Beccaria’s ideas inspired the reforms of 1780 and 1788 abolishing the use of torture. But the Italian philosopher’s fingerprints are most visible on the Constitution of 1791, aiming to establish a constitutional monarchy. The document insists, in particular, on the separation and balance of powers, and provides for numerous measures to ensure the independence of magistrates and the prevalence of the law to punish criminals. The first official debate on abolition of the death penalty took place at the National Assembly the same year on 30 May, with Robespierre in particular in the camp of abolitionists. In the end, the establishment of the guillotine for all prisoners sentenced to death was voted through – a measure presented as progress as it made it possible for decapitation, considered less cruel than hanging, to be extended to all sections of society…

We know what happened next. We had to wait until 1981 for that famous phrase “all prisoners [sentenced to death] shall have their heads cut off” to be removed from the French Criminal Code. But during the nearly two centuries separating the establishment of the guillotine and abolition, numerous political actors would align themselves with the thoughts of Beccaria. Victor Hugo would see him as one of the “great educators of humanity”. Robert Badinter, Minister of Justice, would take up some of his arguments when he brought an end to the death penalty.