Alternative Ideologies of Law: Traditionalists and Reformers in Eighteenth-Century Lombardy David B. Young* Cesare Beccaria's On Crimes and Punish- Dei delitti et delle pene (Des crimes et chia- ments, published in 1764, represented a new, timents) de Cesare Beccaria, publi6 en 1764, "bourgeois" outlook on criminal justice and pr~sente une vision nouvelle et bourgeoise de law in general. According to Beccaria, law la justice criminelle et du droit en g~n~ral. was impersonal, appealing to self-interest and Selon Beccaria, le droit est impersonnel. I1 establishing equality of opportunity through fait appel Al'int~r~t propre et 6tablit une 6ga- the direction of central government. In con- lit6 d'opportunit6 par la direction du gou- trast, one of Beccaria's most vocal critics, Fer- vernement central. Par contre, Ferdinando dinando Facchinei, expounded a more Facchinei, critique acharn6 de Beccaria, pro- traditional, feudal ideology. According to pose une ideologie fReodale plus tradition- Facchinei, law was divinely sanctioned, jus- nelle. Pour Facchinei, le droit est de sanction tifying the immobility among classes, and en- divine. lljustifie l'immobilisme des membres forced in a kindly but paternalistic manner. des classes. II est appliqu6 avec bont6 mais Modern scholars have dismissed Facchinei's d'une faqon paternaliste. Les intellectuels ideology, adopting Beccaria's as "virtually modernes ont rejet6 l'id6ologie de Facchinei self-evident". The author discusses both et adoptE, comme allant de soi, celle de Bee- these world views. He submits that, while the cara. I'auteur 6tudie ces deux visions du respective proponents of each view differed monde. II soutient que, bien que les deux in many respects, they were in fact speaking adversaires aient eu des vues divergentes sur within the same framework. They both ad- plusieurs sujets, ils 6voluaient dans un cadre dressed the landowning elite of eighteenth- de r6eference commun. Ils s'adressaient tous century Lombardy and tried to justify this deux A l'lite foncire de la Lombardie du group's power. Indeed, the two sides can be dix-huiti~me sicle et tentaient de justifier seen as representing "sub-ideologies" rather son pouvoir. On peut meme allerjusqu'A dire than diametrically opposed world views. que ces adversaires ne repr~sentaient que deux < sous-id6ologies)> plut6t que deux vi- sions du monde diam6tralement oppos~es. * * * *Associate: Husch. Eppenberger Donohue, Cornfeld & Jenkins. Kansas City. Missouri: J.D.. University of Missouri-Kansas City. 1988: Ph.D.. Columbia University. 1971: B. Phil.. Oxford University. 1970: M.A., Columbia University. 1971: B.A., Williams College. 1966. ©McGill Law Journal 1989 Revue de droit de McGill 1989] ALTERNATIVE IDEOLOGIES OF LAW Synopsis I. Introduction II. Background, Audience and Common Assumptions III. Society and Law IV. Economy, "Luxury" and Social Mobility V. Economies of Power: Education and Punishment V. Conclusion I. Introduction The publication of Cesare Beccaria's On Crimes and Punishments in 1764 has been taken as representing a drastic departure not merely in the manner of conceiving criminal justice, but of thinking about the nature and function of law itself.' Beccaria and his friends who gathered in the so-called "Academy of Fists" in Milan under the leadership of the indefatigable Pietro Verri2 have been seen as exponents of a "bourgeois" ideology, a way of seeing and evaluating the world quite different from the "feudal" ideology 'E Venturi, Utopia and Reform in the Enlightenment (Cambridge: Cambridge University Press, 1971) at 106; see also, M. Weisser, Crime and Punishment in Early Modern Europe (Atlantic Highlands, N.J.: Humanities Press, 1979) at 133-36; and M. Foucault, Disciplineand Punish: The Birth of the Prison, trans. A. Sheridan (New York: Pantheon Books, 1977) at 11- 30, 74-101. 2The members of the Academy of Fists were young men drawn from the Milanese elite who were determined to bring Enlightenment ideas to the culture and government of Lombardy in particular and to Italy in general. See E Venturi, Settecento riformatore,vol. 1 (Turin: Giulio Einaudi, 1969) at 645-718. Pietro Verri was the moving spirit of the group. He wrote copiously on economic and administrative matters, vehemently rejecting traditional judicial governance in favor of active state intervention in economic improvement. See M.R. Manfra, Pietro Verri e i problemi economici del tempo suo (Milan: Albrighi, Segati, & C., 1932); Limoli, "Pietro Verri: A Lombard Reformer Under Enlightened Despotism" (1958) 18 J. Cent. Eur. Aft. 254. REVUE DE DROIT DE McGILL [Vol. 34 of an earlier day.3 To some modem scholars, the world view expounded by 4 the Academy of Fists seems virtually self-evident. In contrast, twentieth-century researchers have paid scant attention to Ferdinando Facchinei, Beccaria's earliest and in some respects most per- ceptive critic. A monk from Vallombroso in Venetian territory, Facchinei published his Notes and Observationson the Book Entitled, On Crimes and Punishmentsin 1765. 5 The members of the Academy of Fists angrily replied to his work, 6 which purported to indict Beccaria's book on no fewer than six charges of sedition and twenty-three of impiety. Beccaria himself affected an Olympian disdain for Facchinei, at least in print.7 Modern scholars, for their part, have either found Facchinei's writing turgid and his principles incomprehensible, or else they have dismissed him as an exponent of a vanishing world view.8 Prevailing interpretation certainly confirms that there has been a par- adigm change between Facchinei and twentieth-century readers. A clear sign of a drastic divergence in world view is incomprehension. 9 Cultural his- torians have noted that when two groups hold to vastly differing ideologies, 3 D. Humphries & D.E Greenberg, "The Dialectics of Crime Control" in D.E Greenberg, ed., Crime and Capitalism (Palo Alto, Cal.: Mayfield, 1981) at 223-24; see also P Jenkins, "Varieties of Enlightenment Criminology" (1984) 24 Brit. J. Criminology 112. 4P Gay, The Enlightenment: An Interpretation,vol. 1 (New York: Knopf, 1969) at 439-47; M. Maestro, CesareBeccaria and the OriginsofPenal Reform (Philadelphia: Temple University Press, 1973) at 3-45, 125-43. 5 E Facchinei, Note ed osservazioni sul libro intitolato Dei delitti e delle pene (Venice: no publisher indicated, 1765); see D. Young, "Property and Punishment in the Eighteenth Century: Beccaria and His Critics" (1986) 31 Am. J. Juris. 121 at 130-32. 6p Verri & A. Verri, "Risposta ad uno scritto che s'intitola Note ed osservazioni sul libro Dei delitti e delle pene" [1765], in C. Beccaria, Dei delitti e delle pene: Con una raccolta di lettere e documenti relativi alla nascita dell'operae alla suafortuna nell'Europadel Settecento, ed. by E Venturi (Turin: Giulio Einaudi, 1965) at 178 [hereinafter, Delitti (Venturi ed.)]. 7 C. Beccaria, On Crimes and Punishments, trans. D. Young (Indianapolis: Hacket, 1986) at 6: "I have given public testimony of my religion and of my obedience to my sovereign in my reply to [Facchinei's] Notes and Observations;it would be superfluous to answer other writings of this sort." 8Maestro, supra, note 4 at 35-38; Venturi, supra, note 1 at 102-05; see Torcellan, "Cesare Beccaria a Venezia" (1964) 76 Rivista storica italiana 720 at 721-23. 9T. Kuhn, The Structure of Scientific Revolutions, 2d ed. (Chicago: University of Chicago Press, 1970) at 111-59. In the context of changing scientific paradigms, Kuhn points out that, as a new paradigm becomes entrenched, older assumptions and world views appear silly, affected, or altogether incoherent. Changes in conceiving the nature of the world alter what is accepted as a legitimate question or as a legitimate answer. Thus, incomprehension becomes inevitable. 1989] ALTERNATIVE IDEOLOGIES OF LAW world views, or ways of making sense of the world,' 0 neither side can un- derstand the other."l Often one side can make sense of the other only by forcing it onto the Procrustean bed of its own ideology. Thus, elite groups have "made sense" of folk beliefs and practices by treating them as heresy or witchcraft, thereby distorting the significance of these beliefs beyond the recognition of their adherents. 12 Such ideological misunderstandings can operate between periods as well as between groups. The basic assumption and values of the investigator are so remote from those of the investigated that incomprehension, distortion, or cavalier dismissal are inevitable.' 3 If there is a drastic ideological paradigm shift between modem aca- demicians and Facchinei, however, it does not follow that there was such a gulf between Facchinei and the Academy of Fists. Literary and art his- torians have emphasized that the ideology of a work is best found in the outlook of its intended audience rather than in the unique individuality of the writer, composer, painter, or sculptor.14 Generally, works addressed to the same audience share a common set of underlying attitudes and concerns, no matter how much the works may differ in specific proposals or in the 5 courses of conduct they recommend.' '0As used here, "ideology" refers to assumptions about facts and values that enable one to make sense of the world. Without such assumptions, it would be impossible to comprehend either the physical or the social universe. A person without an ideology would be, like Tristram Shandy's mother, incapable of understanding or evaluating anything. In this essay, "ideology" does not refer to false consciousness, for consciousness can be judged false only in light of the evaluator's own ideology. J.M. Balkin, "Ideology and Counter-Ideology from Lochner to Gar- cia" (1986) 54 U.M.K.C. L. Rev. 175 at 176-77. Anthropologists have long been concerned with ways of making sense of the world. As used here, a "way of making sense of the world" is synonymous with an "ideology". Historians have applied this anthropological concern, show- ing how social groups made different assumptions about how the world does work and how it should work, thus arriving at very different understandings.