Cesare Beccaria was an Italian economist who published, Essay on Crimes and Punishment in 1764. It contains an excellent argument against torture.

From the essay:

A cruelty consecrated among most nations by custom is the torture of the accused during his trial, on the pretext of compelling him to confess his crime, of clearing up contradictions in his statements, of discovering his accomplices, of purging him in some metaphysical and incomprehensible way from infamy, or finally of finding out other crimes of which he may possibly be guilty, but of which he is not accused.

A man cannot be called guilty before sentence has been passed on him by a judge, nor can society deprive him of its protection till it has been decided that he has broken the condition on which it was granted. What, then, is that right but one of mere might by which a judge is empowered to inflict a punishment on a citizen whilst his guilt or innocence are still undetermined?

The following dilemma is no new one; either the crime is certain or uncertain; if certain, no other punishment is suitable for it than that affixed to it by law; and torture is useless. If it is uncertain, it is wrong to torture an innocent person, such as the law adjudges him to be, whose crimes are not yet proved.

I have previously argued that torture is incompatible with republicanism . Beccaria's arguments can be added to that list of why.

x-posted in modified form to troppo

Charles Harpur and Dan Deniehy both saw human progress in moral terms. Their view of the end of human development was moral perfection where violence, war, unethical behaviour etc all became morally impossible.

They connected moral progress to republicanism through the removal of tyranny from government with republican technologies - such as constitutionalism, democracy, universal rights etc. Their insight was that increasing liberty enabled a greater and purer expression of morality. This can be taken to its conclusion where a morally perfect humanity does not require governance. For a religious 19thC, that result can also be described as a return to Eden.

Cesare Beccaria wrote:

Whoever reads, which a philosophic eye, the history of nations, and their laws, will generally find, that the ideas of virtue and vice, of a good or a bad citizen, change with the revolution of the ages: not in proportion to the alteration of circumstances, and consequently conformable to the common good: but in proportion to the passions and errors by which the different law givers were successively influenced.

He will frequently observe, that the passions and vices of one age, are the foundation of the morality of the following: that violent passion, the offspring of fanaticism and enthusiasm, being weakened by time, which reduces all the phenomena of the natural and moral world to an equality, become, by degrees, the prudence of the age, and a useful instrument in the hands of the powerful or artful politician.

Hence the uncertainty of our notions of honor and virtue; an uncertainty which will ever remain, because they change with the revolutions of time, and names survive the things they originally signified: they change with the boundaries of states, which are often the same both physical and moral.

Harpur and Deniehy argue that this reading of legal morality need not be true, and it is republicanism which frees the people from the tyranny of their executive and legislative. We have seen in the last decade, the United States weaken as a moral force due to the tyranny of its executive and legislative who now condone torture as part of their legal system.

The loss of morality in American jurisprudence, and by implication Australia as well, is not because of the decreasing morality of the American people, but because of the tyranny of the US Executive. This restricts the full moral expression of the American people. Harpur and Deniehy are right.

The increasing morality in human progress has seen the decrease in violence, both organised and arbitrary. The legal systems and jurisprudence of nations become an expression of that increasing morality.

A good example is the Eoran and English legal systems when the first fleet landed at Port Jackson. Much of the conflict was over the differing structures of accepted justice. For instance the British, under Arthur Phillip, reduced capital punishment to property crimes. The Eoran legal system included blood debts which could only be satisfied with ritualised spearing.

This was a particularly violent legal form but which stopped greater violence between Eoran groups. Arthur Phillip was speared by Willemering as part of this legal system as a blood debt for creating a colony on Sydney Harbour and taking food such as fish from the Eoran territories without asking first. Phillip was entirely reasonable about it, and surprisingly, accepted it, though later he did not accept the murdering of John McEntyre in the same manner.

One incident that stands out, and which Thomas Kenneally relates is that of Noorooing:

A woman named Noorooing came into town to tell the whites of the ritual killing of a south Botany Bay native, Yellaway, who had abducted her. She was clearly not an unwilling abductee, since she threw ashes on herself in sadness and refused all food, and other Aboriginals explained she was go-lahng, in a state of ritual mourning and fasting. Soon after, Noorooing, travelling in the bush near Sydney Cove, met and attacked a little girl related to the murderer of Yellaway. She beat the little girl so cruelly that the child was brought into town almost dead, with six or seven deep gashes in her throat and on ear cut to the bone. She died a few days later.

The English were not sympathetic to Noorooing, but other Aboriginals explained to them "That she had done no more than what custom obliged her to ... The little victim of revenge was, from her quiet tractable manners, much beloved in the town; and what is a singular trait of the inhumanity of this proceeding, she had every day since Yellaway's death requested that Noorooing should be fed at the officer's hut, where she herself resided." The native who had committed the murder for which his little kinswoman suffered escaped apparently unpunished. In some way that the Europeans could not understand, the blood debt had been fully settled with the girl's death.

The other important thing to note, is that when the legal system under goes a moral change, it also undergoes a rationality change. The incident with Noorooing appeared irrational, inhumane and immoral to the English. Yet for us in Australia today, the idea of capital punishment for a property crime, transportation to Australia for stealing bread or five hundred lashes for sedition seem irrational, inhumane and immoral.

The morality and rationality of modern jurisprudence has progressed so far that the two competing legal systems in Sydney during the 1790s - the English and Eoran systems - are impossible to fully understand, even though the English system seemed perfectly logical, rational and moral to the English settlers; and the Eoran legal system made perfect sense to the Eora.

Where this moral improvement and rationality change can be adversely affected, and even pushed backward, is through government. When the executive and legislative act in a tyrannical manner, and outside of the moral boundaries of the current rationality, they not only halt moral progress, but turn the clock back. These are the 'passions and errors' that Beccaria writes as negatively influencing future laws and jurisprudence.

The purpose of republicanism's use of political technology is such that these 'passions and errors' cannot be expressed by the executive, legislative or judicature in a republican system. This means Australian Republicanism is not a static movement, it must be constantly aware of the dangers and loopholes that new executives will find in any republican system by which they can express their immoral and tyrannical passions.

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