There once was a young marquis who didn’t know what to do with his life. Fortunately, two older friends took him in hand, found him a journal to write for, and a cause to champion: the abolition of the barbarous punishments of an earlier epoch that had trespassed into the Age of Reason. The friends conceded to others that the young man ‘knows nothing of our criminal system’ and that ‘… writing is laborious for him, and costs him so much effort that after an hour he collapses and can’t go on”. But no matter: “When he had amassed the materials” they ‘wrote it out, arranging them in order, and made a book out of them’ (Pierro Verri quoted in Paolucci 1963 xiv). In 1764 On Crimes and Punishments appeared, nominally written by Cesare Beccaria but in all probability by Pierro Verri, given Beccaria’s suspicious near zero productivity in the subsequent decades. But however anticlimactic his later career, Crimes and Punishments gave Beccaria a hugely successful entrée into the republic of letters.
The timing was, after all, perfect. In 1762 - just three years after Adam Smith had announced that even the ‘greatest ruffian’ is not without the principle sympathy - a blameless calico merchant was broken on the wheel at the order of a tribunal of Toulouse nobility. Voltaire stormed at this outrage, and in 1764 the King annulled the terrible sentence. Thus Crimes and Punishments is very easily seen as a shriek of the cult of sensibility against the official violence of the day. But there are other interpretations. Henry Paolucci takes the book to be an act of complaisance of a renegade noble, simultaneously gratifying the bourgeois and pleasing the absolute monarchy by deploying a bourgeois rhetoric to justify the extinction of aristocratic prerogative (Paolucci 1963). Bentham took it as the kernel of his philosophy, and historians of ideas prize it as a fountainhead of utilitarianism. I would suggest Becarria is recognizable as a prototype of the criminologist of our day: Becarria almost totally ignores crimes of violence, and construes legitimate punishment purely as an act of social efficiency. He accommodates no notion of equity as foundation for punishment: “an eye for an eye” - most palpably a principle of equity – is as alien to him as it is to the current criminological mind set.
But the author of the volume under review has a different use for Crimes and Punishments. For Harcourt it is device to launch himself at his overarching target; policies of deregulation and free markets. His point of impact is the Economics of Crime, with its seemingly Benthamite logic and its ‘Chicago’ provenance. Some how, it is insinuated, Becaria will be the key to Becker, and all that spells.
Harcourt turns the key, but, regrettably, the lock doesn’t move. Harcourt immediately notes the incongruity between Becker and Beccaria. Beccaria may have been Benthamite avant la lettre but he was no economic liberal. And this is no surprise: utilitarianism - the maximization of aggregate utility – amounts to an infinitely ramified prescription of what should be done, and is consequently perfectly totalitarian in implication.
And Chicago is not Benthamite, anyway. Its normative axiom is Paretianism not utilitarianism, something quite different. And its distinguishing axiom is a positive one: a panglossian assumption of ‘efficiency’. Stigler, Becker etc do not merely seek efficiency, desire efficiency, hope for efficiency. Rather, they hold everything is efficient. Whatever is extant is efficient. And this applies to regulation as much as anything else. In the United States sugar regulation has been extant since 1789. And, consistent with his tenets, Stigler in a posthumous publication defended the appalling thicket of regulation engulfing this industry (Stigler 1992).
I venture to doubt whether the author approves a protection racket – in all senses of the term - that drives up sugar prices for hundreds of millions of consumers to the benefit of a tiny group of producers with politicians in their debt. But I am even more ready to wager the author of the Illusion of Free Markets would pour scorn on any move to deregulate that industry. For it is his evident conviction is that every economic encounter is and must be rigged, fixed, sewn up. He is possessed of a nihilism about the very possibility of the abolition of privilege, the symmetrical treatment of parties. This is not simply a nihilism about the attainment of an ideal, but even about the merely closer approach to the ideal.We are permanently trapped, it seems, in abusive associations. It is perhaps not surprising that this drastic nihilism is asserted rather than argued. What would be the argument? The frequent observation that to play is to have rules is no argument for this nihilism. Neither is one provided for by the author’s learned and curious history of 18th century regulation.
Harcourt, Bernard E (2011), The Illusion of Free Markets: Punishment and the Myth of the Natural Order¸Harvard University Press.
Paolucci, Henry (1963) ‘Introduction’ to On Crimes and Punishments by Cesare Beccaria, Indianapolis : Bobbs-Merrill.
Stigler George J. 1992 ‘Law or Economics?' Journal of Law and Economics, 35( 2), pp. 455-468.