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Dario Ippolito, L’esprit des droits. Montesquieu et le pouvoir de punir

Ramses Delafontaine
L'esprit des droits
Dario Ippolito, L'esprit des droits. Montesquieu et le pouvoir de punir, Lyon, ENS Éditions, coll. « La Croisée des chemins », 2019, 134 p., trad. de l'italien par Philippe Andegean, préf. Martin Rueff, ISBN : 9791036200632.
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  • 1 Dario Ippolito, Lo spirito del garantismo. Montesquieu e il potere di punire, Rome, Donzelli Editor (...)

1In L’esprit des droits. Montesquieu et le pouvoir de punir [hereafter ED], the Italian political philosopher Dario Ippolito reconsiders Montesquieu’s Lettres persanes and L’esprit des lois [hereafter EL]. The title of Ippolito’s original work in Italian – Lo Spirito Del Garantismo. Montesquieu e il potere di punier – tells us that the author seeks to determine to what extent the philosophical foundations of the Italian jurist Luigi Ferrajoli’s theory of ‘garantismo’ can be found with Montesquieu.1 In other words, as Martin Rueff notes in his foreword to the French edition, Ippolito undertakes a genealogy of Ferrajoli’s ‘garantismo’ for which he goes back to Montesquieu (ED, p. XX). I will first briefly discuss Montesquieu’s thoughts in EL on criminal law. After which I will turn to Ippolito’s analysis and Ferrajoli’s ‘garantismo’.

  • 2 Judith Shklar, Montesquieu, ed. Keith Thomas, Past Masters, Oxford, Oxford University Press, 1987, (...)

2The principle idea, which Montesquieu set forth in EL, was that those who wield the power of the state continuously seek to expand this power at the expense of the liberty of the citizens. This power therefore has to be checked by others in power to avoid the rise of despotic power. Montesquieu then argued that the power of the state should be exercised following a system of checks and balances based on the principle of a division of powers between the legislative, executive, and judicial branches of government. Montesquieu additionally identified criminal law as an important safeguard against excessive use of the state’s power to punish. In EL, he wrote ‘Therefore, the citizen's liberty depends principally on the goodness of the criminal laws’ (EL, XII, ch. 2). His insight that criminal law protects and at the same time threatens individual liberties is – unjustly – the lesser-known half of what Judith Shklar called Montesquieu’s liberalism of fear.2

  • 3 Anne Cohler, Montesquieu. The Spirit of the Laws, ed. Raymond Geuss and Quentin Skinner, Cambridge (...)

3We can probably retrace Montesquieu’s concern with criminal law to his career as a magistrate in the criminal chamber of the Parlement de Bordeaux from 1714 to 1726. As president of the Parlement, a position which he occupied from 1716 onwards, Montesquieu could not have avoided overseeing criminal inquiries, including interrogations that relied on torture, as well as punishments such as the assignment of the condemned to the galleys and the carrying out of capital punishments.3 To his credit, these experiences with the criminal justice system of the Ancien Régime drove Montesquieu’s thinking towards more enlightened ideas on criminal law.

  • 4 Cesare Beccaria, Die delitte e delle pene, Milan, Francesco Sanvito, 1764, p. 287, and various vari (...)

4Humanizing punishments was a popular subject among thinkers of the Enlightenment, especially those writing in the second half of the eighteenth century upon who Montesquieu’s works had an influence. In his Dei delitte e delle penne, Cesare Beccaria, to give one example, reverently called Montesquieu ‘the immortal president’.4 His influence is surprising when we realize that Montesquieu did not set out a systematic theory on criminal law in EL. Rather, he returned to the subject on several instances in all of his works, especially in book VI of EL.

5Much of Montesquieu’s elaborations on criminal law are derived from the idea that all laws which criminalize acts that are not truly criminal are corrupt and diminish the liberty of the citizens. He therefore argued against criminalizing thoughts, religious offences, acts of lèse-majesté, and suicide. He furthermore looked favorably upon humanizing penal law and instituting proportional penalties founded in law. The quality and clarity of the language of criminal laws as well as the active and consequent application of criminal laws through conscious deliberation in the light of the specific facts of different cases by judges, who should respect nullities, the rights of the defense, and criminal procedural formalities; were all essential conditions for Montesquieu in order for criminal law to protect citizens from unjust accusations by corrupt prosecutors and undeserved punishments by arbitrary judges.

  • 5 Louis Althusser, Montesquieu. La politique et l'histoire, Paris, Press universitaires de France, 19 (...)

6In nine topical chapters, which mostly consider a specific crime Montesquieu sought to decriminalize, Ippolito makes a detailed and well-founded analysis of Montesquieu’s concerns over criminal law. The merit of Ippolito’s analysis is apparent on three levels. The first is bringing the work of Ferrajoli to the attention of French-speaking readers. The second is the amount of literature that Ippolito brings to bear on his reflections. The third is his conviction to interpret Montesquieu on his own terms, that is within the historical intellectual context in which Montesquieu was writing. However, one does not see Ippolito breaking much new ground. For example, in the second chapter – which constitutes the most in depth analysis of the book – Ippolito questions what Montesquieu meant by ‘la nature des choses’ as a normative imperative (ED, p. 27-44). Ippolito arrives at an argument which was already formulated by Louis Althusser in 1959 when he put forth that when Montesquieu wrote about ‘the natural state of affairs’ as a normative principle he meant that laws should confirm and enable the common reports among men specific to their geographical, temporal, and cultural contexts (in contrast to creating laws based on natural, categorical, Kantian absolutes).5

  • 6 Dario Castiglione, ‘Introduction’, Res Publica, 17, 2011, p. 312-313. Ferrajoli’s work has only bee (...)
  • 7 Luigi Ferrajoli, Diritto e ragione. Teoria del garantismo penale, Romi-Bari, Laterza, 1989. In 2007 (...)

7Luigi Ferrajoli’s concern for protecting civil liberties from excessive criminal prosecution was similarly the result of hands-on experience as an Italian magistrate in the sixties and seventies. Ferrajoli is a legal philosopher whose work is well known to Italian, Spanish, and Latin American jurists.6 In his work Diritto e ragione: Teoria del garantismo penale [Law and Reason: Theory of Criminal Guaranties] Ferrajoli sets out a theory of legal positivism in which criminal guaranties form essential protections for individual liberties.7 Ferrajoli theorized that there were two categories of guaranties: primary and secondary. Primary guaranties are rights as well as material and procedural laws. While secondary guaranties are the duties to act (especially of judges) when the primary guaranties have been transgressed or ignored.

  • 8 Carlo Ginzburg, The Judge and the Historian: Marginal Notes on a Late-Twentieth-Century Miscarriage (...)

8It is perhaps not surprising that such a theory which regards the formal guaranties of the criminal justice system as essential for safeguarding personal liberties developed in post-war Italy where one can find more than one relatively recent criminal case brought against – alleged – terrorists in which the judiciary, in close collaboration with elements of the executive, failed to protect the essential rights of the accused and produced, what the Italian micro-historian Carlo Ginzburg has called, ‘a miscarriage of justice’.8

  • 9 Sharon Weill, ‘Terror in Court. French counter-terrorism: Adminstrative and Penal Avenues. Report f (...)
  • 10 Letta Tayler, ‘Grounds for Concern. Belgium's Counterterror Responses to the Paris and Brussels Att (...)

9Today, not only Italians need to worry about the delicate balance between the protection which criminal laws provide and the danger they pose at the same time. For as Italian governments and courts have answered the threat of terrorism, in part, by occasionally diminishing the protections and safeguards of prosecuted citizens, so too have other governments in Europe – and across the globe – reacted to the most recent wave of Islamic (both international and domestic) terrorism by diminishing those safeguards. Whether as in France through an across the board reduction by instituting a ‘state-of-emergency’ whose emergency character was no longer characterized by brevity [in France the ‘state-of-emergency’ started on November 13, 2015 (the day several terrorist attacks in Paris killed 130 people with over 413 people injured) and lasted until November 1st, 2017 (after the French legislature had passed new counter-terrorism legislation on October 3rd, 2017)].9 Or as in Belgium where the federal government in the wake of the attacks in France and Brussels in 2015 and 2016 reformed criminal warranties one individual measure at a time.10

10Apart from the diminishment of classical criminal guaranties in the wake of terrorism attacks and threats, governments also diminish the protection of criminal law by encroaching upon the privacy of their citizens as state agencies gather increasingly more information on citizens. I am thinking of the increasingly frequent use of techniques such as wiretapping, reviewing of social media messages and emails, prevalence of cameras in the public sphere, collection of financial information and even biometrical data, etc. Often initially proposed as positive efforts in the public’s interest to identify more rapidly criminals and circuits of black money, there is a risk that governments are moving to use these information streams against their citizens for less noble purposes such as the initiation of unwarranted criminal prosecutions, if that is not indeed already the case.

11Though this contemporary relevancy of the guaranties of criminal law was raised in the introduction by Ippolito (ED, p. 14-15), the author does not consider this further in the book. It is unfortunate that Ippolito has not ventured to apply Montesquieu’s and Ferrajoli’s philosophies to these contemporary challenges. This in contrast with what Montesquieu professed were his own aims when he wrote about establishing a more scientific form of legal scholarship. For Montesquieu it was clear that to find the true ‘nature des choses’ it is necessary to look at contemporary social experience.

12Montesquieu’s basic premise that state power will seek to curtail citizens’ liberties is a lesson we do not have the luxury of forgetting. Remembering that Montesquieu made a clear division between on the one hand how we organize our political institutions (a constellation of checks and balances) and on the other hand the necessary role of criminal law for the protection of the liberties of citizens (political rights, rights of property, and civil liberties), is important. The work by Ippolito, Ferrajoli, and Montesquieu forcefully remind us that criminal laws deserve our attention and protection for they shield us from the arbitrary exercise of power and thus safeguard our liberty.

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Notes

1 Dario Ippolito, Lo spirito del garantismo. Montesquieu e il potere di punire, Rome, Donzelli Editore, 2016.

2 Judith Shklar, Montesquieu, ed. Keith Thomas, Past Masters, Oxford, Oxford University Press, 1987, pp. 89 and 126.

3 Anne Cohler, Montesquieu. The Spirit of the Laws, ed. Raymond Geuss and Quentin Skinner, Cambridge Texts in the History of Political Thought, Cambridge, Cambridge University Press, 1989, p. xiv-xv.

4 Cesare Beccaria, Die delitte e delle pene, Milan, Francesco Sanvito, 1764, p. 287, and various variations on pp. 86, 114, 65, and 75.

5 Louis Althusser, Montesquieu. La politique et l'histoire, Paris, Press universitaires de France, 1959, p. 15 and p. 27-41.

6 Dario Castiglione, ‘Introduction’, Res Publica, 17, 2011, p. 312-313. Ferrajoli’s work has only been addressed in a cursory manner in English literature, with the notable exception of a symposium from 2011 published in Res Publica: Dario Castiglione, ‘Symposium on Luigi Ferrajoli’s Theory of Law and Constitutional Democracy’, Res Publica, 17, 2011, p. 311-383.

7 Luigi Ferrajoli, Diritto e ragione. Teoria del garantismo penale, Romi-Bari, Laterza, 1989. In 2007, he published a grand legal theory of constitutional democracy. Luigi Ferrajoli, Principia iuris. Teoria del diritto e della democrazia, Roma-Bari, Laterza, 2007.

8 Carlo Ginzburg, The Judge and the Historian: Marginal Notes on a Late-Twentieth-Century Miscarriage of Justice, trans. Anthony Shugaar, London, Verso, 1999. A similar case study is Alessandro Portelli, ‘Oral Testimony, the Law and the Making of History: The “April 7” murder Trial’, History Workshop, 20, 1985, p. 5-35.

9 Sharon Weill, ‘Terror in Court. French counter-terrorism: Adminstrative and Penal Avenues. Report for the official visit of the UN Special Rapporteur on Counter-Terrorism and Human Rights May 2018’, The Capstone Course on Counter-Terrorism and International Crimes, Paris, PSIA, Sciences-PO, 2018.

10 Letta Tayler, ‘Grounds for Concern. Belgium's Counterterror Responses to the Paris and Brussels Attacks’, United States of America, Human Rights Watch, 2016.

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Référence électronique

Ramses Delafontaine, « Dario Ippolito, L’esprit des droits. Montesquieu et le pouvoir de punir », Lectures [En ligne], Les comptes rendus, 2019, mis en ligne le 06 juillet 2019, consulté le 21 août 2019. URL : http://journals.openedition.org/lectures/35713

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Ramses Delafontaine

Dr Ramses Delafontaine obtained degrees in history and law from the University of Ghent (2013 and 2018). Since October 2018 Dr. Ramses Delafontaine is postdoctoral researcher FWO in the History department of the same University. His fields of research are legal history, the history of public health and the philosophy of history with a special focus on the use of historical argument in a judicial context – particularly in civil law in the United States – as well as on the role of the historian as expert witness. His first monography was published in 2015 by Springer International Publishing under the title: Historians as expert judicial witnesses in tobacco litigation: a controversial legal practice. He is a member of the committee on legal history of the Académie royale flamande de Belgique des sciences et des arts.

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