1 Introduction

The institutional reorganization of Lombardy during the reign of Maria Theresa reached its highest point and its paradigmatic moment in the reform of the university. That work took around two decades to complete, from 1753 to 1773,¹ and represents an exemplary case inasmuch as it prefigured the new centralized model of state administration that revoked the power of intermediary bodies: the Milanese Senate was deprived of its authority over educational matters in 1765, all elements of which, from the appointment of teachers, to the administration of schools and colleges, to the design of curricula up to the awarding of academic qualifications, became a prerogative of the Habsburg sovereign. It was in these decisive years of reform that the most significant theoretical works of the ‘Milanese school’ were produced: Pietro Verri’s Meditazioni sulla felicità (1763), Cesare Beccaria’s Dei delitti e delle pene (1764) and the periodical Il Caffè (1764–1766). The link between the Lombard Enlightenment and the reform process in Lombardy is well known, even though there were the ups and downs brought about by changes in the personal relations between the main protagonists, in particular (but not only) the rift between Beccaria and the Verri brothers at the end of 1766, and also by the expectations, successes and disappointments of the Lombard Enlightenment thinkers with regard to Viennese politics.²

I will not revisit events that are already familiar nor seek to corroborate whether or to what extent the alliance between the exponents of the Austrian government and the members of the Academy of Fists³ was undermined by the different objectives and political cultures of the various protagonists.⁴ My aim is instead to reconsider the relationship between natural law and utilitarianism in the key works of the ‘Milanese school’, as well as to rethink the relationship between contractualism and legal positivism, using the debates and the public education reform plans as the interpretative context.

As has been authoritatively and repeatedly confirmed, the educational reform had a conceptual framework grounded in natural law, and natural law also gave the new Habsburg power theoretical legitimacy. Equally significant, and no less charged with ideological meaning, was the ‘utilitarian’ concern with public happiness, with the common good being a substantive goal of government policy.⁵ The motto of the ‘Milanese school’, ‘the greatest happiness shared among the greatest number’, echoed in several variations and is also present in the Memoria sopra la riforma generale degli studi nella Lombardia austriaca, which was probably written by Pietro Paolo Giusti at the end of 1768, in which it is stated that: ‘nothing should be of greater interest than how to spread the greatest amount of knowledge to the greatest proportion of the nation’.⁶

In the copious documentation that accompanied the reform of the university, the coexistence of natural law and ‘utilitarianism’ does not seem to have caused problems. Was this a foregone conclusion for those involved, or did it immediately appear to be a mismarriage, at least in the eyes of the radical intellectuals writing for Il Caffè? The latter hypothesis would imply the existence of an unbridgeable gap between radical demands for reform made by the members of the Academy of Fists and the actual implementation of those same reforms from the late 1760s to the early 1770s. What is more, even from the point of view of criminal law and its teaching, which was equally subject to the winds of change, the question is far from irrelevant: was the principle of the ‘mildness of punishment’, at the heart of the call for the abolition of torture and the death penalty, inspired by a completely secularized, utilitarian and positivist view of criminal justice, or was it instead part of a view that ultimately referred to the idea of natural justice?

I share the view of other contributors to this volume that there was a reception leading to a critical reappraisal and reformulation of the main themes of the modern tradition of natural law and the law of nations. In the context of the university reform it is possible to demonstrate that the critique of the tradition of natural law in Il Caffè does not constitute a complete rejection of natural law and of the study of law.

In the next two sections I respectively consider critiques of the natural law tradition made by the ‘pugilists’ and give thought to the reinterpretation of this tradition by some of them: the gius di natura (natural law), together with public law and contractualist theories, will appear as the true language of the reforms. In section 4 I will highlight how the critique of jurisprudence and the adherence to the emerging science of economics were not meant to replace legal science with the science of ‘public economy’, but were aimed at a reformulation of the hierarchy of knowledge that saw the ‘citizen philosopher’ at the top of the scale. In complete harmony with the plan of university reform, members of the Academy of Fists looked to a new type of expert who could recover the original principles of the sciences, in particular the new ‘philosophical jurist’. As section 5 highlights, it was in fact Beccaria who in this role proved himself capable of ‘discovering’ the principles of criminal justice.⁷ Finally, in section 6, I will focus on the very close connections, even from a biographical point of view, between the Lombard Enlightenment and university reform.

2 The Academy of Fists and Natural Law: Which Natural Law?

The harshest and most radical critique of natural law by the authors of Il Caffè can be found in an unpublished article by Alfonso Longo,⁸ which contains a satirical depiction of humans, described through the fiction of an assembly of dogs. In the name of brute force and of a materialist vision of reality, the entire text condemns without qualification all pretence to truth and universal justice, and it culminates in a corrosive conclusion: ‘This canine assembly reserves the full, inalienable, natural right to publish these laws even in countries yet to be discovered, and even on the moon, since our power extends that far, as is clearly demonstrated by the way we howl at it’.⁹ Having survived among Pietro Verri’s unpublished papers, Longo’s essay could be construed as the truth hidden behind the pages destined for publication, a sort of esoteric lesson beneath words exposed to the rigour of criticism and censorship.

Given this interpretation, the articles by Alessandro Verri published in volume 2 of Il Caffé (in particular, the praise of Carneades over Grotius) at first glance appear to be an indisputable attack on the ‘law of nature’, which is contrasted with the principle of utility as a foundation of human societies and their institutions. On this reading, the juridical perspective of natural law would be contrasted with a new form of ‘economic’ knowledge: the calculation of interests and the predictability of human passions. The principle of utility that replaces natural law, a new economic reason that marginalizes the old jurisprudence, the philosopher who takes the place of the jurist: these would be the ideas shared by the group of intellectuals linked to the Academy of Fists on the anthropological, epistemological and institutional level.¹⁰ These ideas appear to have been sketched already in Pietro Verri’s Meditazioni sulla felicità and in the first draft of Beccaria’s Dei delitti e delle pene. In the Meditazioni Verri adopted for the first time in Italian the maxim of the ‘greatest possible happiness shared with the greatest possible equality’¹¹ and made it part of a unified anthropology that explains all human actions as effects of pleasure and pain, that is, of interest in a broad sense, physical and moral. Rejecting what he took to be Shaftesbury and Hutcheson’s dualism, which envisaged the possibility of a ‘disinterested’ love of one’s neighbour compatible with self-love, Pietro Verri, like Helvétius, believed that even compassion originated in a desire to escape pain.¹² Despite the reference to the social contract as the foundation of societies and of the law, mention of natural law appears to be absent in this 1763 text: the phrase ‘law of nature’ refers exclusively to the mechanism of the passions and to the love of pleasure, and the term ‘law’ designates the law in force in political societies. The natural liberty partly forfeited through the social contract is not defined as a right. This, therefore, should be interpreted as a form of contractualism without natural law.¹³

The language of natural law is almost entirely absent also in the first manuscript version of Beccaria’s Dei delitti e delle pene, in which terms like ‘interest’, ‘natural sentiments of mankind’ and ‘self-love’ recur frequently. The ‘right to security’ explicitly alludes to a political right, inasmuch as it is one ‘which each citizen has earned’.¹⁴ There is only one instance in which we encounter a concept above the positivist legal horizon, namely the ‘rights of humanity’.¹⁵ This one occurrence does not seem to weaken the framework of legal positivism that appears to structure the whole text with great consistency, beginning with the definitions both of law, seen as ‘the restraint necessary to hold particular interests together, without which they would collapse into the old state of unsociability’, as well as of justice.¹⁶ Thus also in this case we are faced with a contractualism that is anti-natural law and clearly positivist, being closely connected with a materialism that denies human freedom and, in analogy with the physical world, sees humanity as motivated solely by the ‘force which attracts us, like gravity, to our own good’.¹⁷

From the first autograph manuscript onward, Beccaria’s work included references to the union of the soul with the body, to the connection between morality and politics, and to the rights of humanity. All these references should, however, be dismissed as being a form of self-censorship or purely rhetorical concessions within a new horizon of thought that, in the mid-eighteenth century, was completely secularized, partly through a materialism inspired by Lucretius. The different stages in the drafting of the Delitti, which ended with the ‘fifth’ edition of 1766, reflected the attempt to make these theses in the first edition ever less heterodox, above all under the pressure of vehement charges of irreligiousness that rained down on the head of the anxious Beccaria, whom Ferdinando Facchinei accused of wanting to repudiate natural law.¹⁸

But, we might ask, does the denial of the existence of a law of nature established by God imply the rejection of natural law? In other words, who was right: the abbot Ferdinando Facchinei, who included Beccaria in the ranks of the ‘modern publicists’ who, according to him, denied natural law, or Jeremy Bentham, who detected incoherent residues of natural law in Dei delitti?¹⁹

As has been authoritatively argued, natural law has been defined in many ways;²⁰ it does not necessarily imply a theological foundation but can easily fit within a materialist or at least secular horizon of thought. On the one hand, Grotius’s rationalist perspective was used, for example by Pierre Bayle, to advance the theory of the virtuous atheist. On the other, from Hobbes to Pufendorf to Locke, the possibility of knowing natural law through natural reason could coexist with the idea that the obligation to follow this law originates in divine will.²¹ Conversely, as the line running from Grotius to Wolff, Burlamaqui and Vattel demonstrates, an authentically religious position did not necessarily imply adherence to a voluntarist theory of natural obligation.

Among the most representative authors in the materialist wing of the philosophes in the middle of the eighteenth century, both Diderot and Helvétius were far from making a radical rejection of natural law. The most significant case is that of Diderot, who in the entry ‘Droit naturel’ of the Encyclopédie suggested that the criterion for just and unjust was to be found in the general will of the human species. The idea of a hypothetical ‘general assembly’ of rational beings mentioned by Diderot appears to echo Wolff’s ideal of the civitas maxima, although for Diderot this would be the foundation not only of the law of nations, but also of the ‘truly inalienable natural rights’ of humanity.²²

As for Helvétius, although he clearly did not set out to discuss natural law theories, it would be wrong to consider him a critic of natural law because of his atheism or his materialism. On the contrary, natural law raises its head in De l’esprit – albeit incidentally, as if it were something that went without saying – in the context of a critique of tyrannical and arbitrary power. Such power is accused of deterring men from educating themselves in natural law, public law and the law of nations.²³ There is an undeniable link between ignorance of these sciences and the violation of human rights, which can occur where the principle of the happiness of the minority holds sway: ‘In policed countries, the art of legislation has often consisted in making an infinite number of men subservient to the happiness of a few; in keeping, for this purpose, the multitude under oppression, and in violation all the privileges of humanity they have a right to demand’.²⁴

As has often been stressed, Beccaria appears to have taken inspiration from this passage when writing the introduction to his main work. His knowledge of the Encyclopédie and of Diderot’s ‘Droit naturel’ entry is certainly beyond doubt, not only because of its prosopopoeia of the thief who chooses a life of crime, ‘gambling’ on a happy life in exchange for moments of suffering: Diderot’s ‘violent reasoner’ is without question an example of an ‘apologia of injustice’.²⁵ The mention of the ‘rights of humanity’ is, from the first version of Dei delitti, full of references to inalienable natural rights.

Hence the embrace of materialist theories does not in itself indicate a rejection of natural law. For a historical understanding of Beccaria and the members of the Academy of Fists when criticizing traditional knowledge and proposing a reform of the law, one must therefore disregard whatever religious ideas one may harbour and instead consider more deeply the close connections with a broader cultural and social reform.

3 The Modern Innovators and the New Language of Natural Law, the Law of Nations, and the Social Contract

Before verifying whether some form of natural law continued to constitute the more or less implicit theoretical framework of Dei delitti e delle pene, we must consider the way in which the authors of the natural law tradition are mentioned in the works of Beccaria and the Il Caffè authors. From this perspective not only must one bear in mind the plurality of natural law traditions, which were quite familiar to these internationally minded Italian authors, but one must also avoid undervaluing the way these traditions were constantly reinterpreted. As such, beyond the specificity of individual intellectual and professional paths, it is possible to discern a polemical intent shared by the members of the Academy of Fists that also corresponds to the peculiarity of the Lombardy context during the age of Maria Theresa and Leopold II.²⁶

The group gathered around the academy, although largely coming from families of the patriciate, battled against the two pillars that supported the power of the local aristocracy, who opposed the reform policies desired by Vienna: the Church and the Senate, of which Count Gabriele Verri, father of the Verri brothers, was a member. The intellectual activities of the members of the group were thus motivated by a twofold (but indivisible) philosophical-cultural and political-professional aspiration: on the one hand, that of gaining entry into the enlightened republic of letters, pursuing fame and influencing public opinion; and on the other, that of supporting the Habsburg government and constructing a curriculum that would prepare them for participation in the new ruling group, searching for a suitable role, including in economic terms.

To this end, the politics of book dedications and submissions did not diverge from the normal practice of the era and certainly did not reduce the philosophical and scientific significance of the works. Unlike the French philosophes, who were excluded from government and universities, the intellectuals linked to Il Caffè acted in a context similar to a wide variety of European local realities in which the clash of powers and institutions offered the possibility of imagining reform paths and of obtaining occupations in the institutions, posts which might include, albeit not necessarily, academic careers. In this respect the Milanese environment seems to have been not dissimilar to that of Switzerland, if we consider, for example, Emer de Vattel, whose literary and philosophical activity was clearly oriented to finding a position at home or abroad.²⁷

If the Senate and the ecclesiastical institutions were the main enemies, even from the personal point of view – especially for Pietro and Alessandro Verri, who, more than the others, had to endure the rigid views of their family – the polemical targets on the theoretical level were the pillars on which these authorities rested, which can be summarized in two words: tradition and whim. All the philosophical and political battles waged by the Il Caffè authors can be linked to these two.

In the Orazione panegirica sulla giurisprudenza milanese, composed by Pietro Verri and discussed by the members of the Academy of Fists in 1763, a representative of tradition, supposedly personifying Senator Gabriele Verri, takes the floor. He denounces the corruption of the century and the ‘ultramontane’ poisons that were spreading throughout Italy thanks to ‘modern inept innovators’, all the while looking, however, with relief at the Milanese area where the power of local courts remained intact.²⁸ The object of this ironic polemic was the existing local legislation, the Nuove Costituzioni of 1541, criticized for clashing with nature and for its lack of proportion between crimes and punishments, in particular in cases which carried the death penalty. That work presented the same arguments later taken up by Beccaria for the impunity of crimes of conscience, abortions, sexual indiscretions, as well as on the right to emigrate.

Apart from the Nuove Costituzioni, the institution that was directly attacked was the Milanese Senate, then made up of only jurists.²⁹ This was a body that united ‘the person of the legislator and the judge’ and kept for itself the power both to interpret laws and to judge according to equity. In this attack on the Milanese political scene specifically, as well as local laws and the Senate, Pietro Verri also criticized the doctrinal tradition on which they were predicated, in particular the ideas of the jurists Bossi, Claro, Sacchi, Tiraqueau, Mantica, Menocchio, De Luca and Fulgosio, against whom he set the authors who had introduced ‘a new language of Gius naturale, Gius delle genti, Patto Sociale’. The text unhesitatingly named the ‘modern innovators’ who were opposed to that tradition: Voltaire, and then Bacon and Montesquieu with regard to the separation of legislative and judicial power, and the Rousseau of Emile, who had been condemned by the Paris parliament. Pietro Verri considered Rousseau to be a supporter of natural law. The practice of torture was also denounced, for being contrary ‘to the inalienable natural right to self-defence’.³⁰

If we compare this text with what was published in Il Caffè and the works of Beccaria, we can see that the polemic was not directed at the science of law in general, but at the ‘reigning Jurisprudence’ in the Milanese area, from a point of view that ran parallel to the Austrian government’s reform programme, in which members of the Academy of Fists and their collaborators actively participated.

In the first volume of Il Caffè Alessandro Verri criticized the Justinian Code for being cumbersome and contradictory, and for making no reference to the ‘constant and general principles of justice’ that were at the root of all useful laws.³¹ Nevertheless, the mass of Justinian laws contained not only opinion, but sometimes also reason, and the Institutes were defined as ‘the only ordered code of Roman laws’.³² According to him, the greatest degeneration lay in the rediscovery of Roman law by the glossators and commentators, Irnerius, Accursius, Bartolus and Baldus. Alessandro took up this analysis of Roman law again in his essay Ragionamento sulle istituzioni civili (1765), where he explained in greater detail why he approved of the Institutes: ‘they are the only real code that we have’, since, by setting out ‘the elements of the law taken as general rules and without reference to particular cases’, they expose ‘the principles for deciding questions’, in order to educate young people.³³ Outlining the main stages of the establishment of the common law in Europe, Verri emphasized the gulf between theory and practice, between erudite jurisconsults and forensic jurisprudence, which became a legal language unknown to those coming from the university and the study of the Institutes. And while the jurists of local courts and all the legal practitioners were educated on local practices and statutes, producing a sort of Pyrrhonism insofar as ‘jurisprudence changes with the post-horses’,³⁴ the development of legal science, starting with Cujas, had led to a similar disorder, by increasing the number of books and interpretations. In this way, the proliferation of laws and doctrines led to a sort of anarchy in which the sheer number of laws paradoxically meant an absence of law. Arbitrariness of interpretation inevitably followed the disorder of jurisprudence and affected in particular the right of ownership.³⁵

The reform of civil law and its procedures proposed by Alessandro Verri, in agreement with other Il Caffè authors, was aimed at ending this disorder by introducing a new code that was both universal and suitable for the growth of trade and relations between citizens that marked the modern era. Consequently, criticism of the excessive number of laws and professionals in the public sphere went hand in hand with the awareness of a new and different function for jurisprudence. There was also the consciousness of the difficulty of enacting a reform whose end was that of removing legislative power from the legal experts and the judges through the introduction of laws that were clear, simple and necessary rules for guaranteeing not only the institution of property but also, and primarily, the ‘universal good’.

The main protagonist of this reform that aimed more at destroying than building was to be the ‘jurisconsult philosopher’,³⁶ who had the collective profile of Il Caffè’s contributors and embodied the figure of the expert ideally suited to the task of renewing the educational institutions. Developing a new code in fact required a jurisconsult with expertise in Roman law, in particular the Digest, and who had an understanding of the treatises that offered clear expositions of all aspects of jurisprudence, such as Heineccius’s and Domat’s.³⁷ However, at the same time he had also to be a ‘philosopher’ in the sense of understanding the infinite multiplicity of social relations (‘commerce, the new arts, new customs, the contracts of various types’) and intellectually able to ‘tie the many threads into a knot’.³⁸

It is interesting to observe that both volumes of Il Caffè included an index of topics; in the first volume we find under ‘Public economy’ not only essays on commerce, luxury and contraband but also the articles ‘On the Fideicommissum’ by Alfonso Longo and ‘On the Legislation of Justinian’ by Alessandro Verri, alongside ‘Political Thoughts’ by Sebastiano Franci.³⁹ Thus, from the point of view of the Il Caffè editors, there was a close link between ethics, politics, law and public economy – a connection that we see again a few years later in the inaugural lecture for the chair of cameral sciences delivered by Beccaria on 9 January 1769. In this, while denouncing the times and places in which ‘private jurisprudence became the public legislator’, he presented ‘public economy’ as a science that was also important for the study of civil law since it was aimed at ‘the invariable law of utility and the eternal norms of universal equity’.⁴⁰ For him, therefore, it was not a question of replacing law with economy, but of re-establishing the right relationships between disciplines and professions, overcoming the general subordination of jurisprudence to ‘private justice’, a subordination that had had the effect of enabling the rise of the ‘anti-political canon’ that rewarded inertia at the expense of work: ‘These and others are the effects of restricting jurisprudence within the boundaries of private justice when it ought to embrace all the greatest principles of morals and politics’.⁴¹

The reference to the ‘greatest principles of morals and politics’, in the plural, cannot be interpreted only as a reference to the formula of maximum happiness for the greatest possible number. Morals and politics relate to the language of the ‘law of nature’, of the ‘law of nations’ and of the ‘social contract’ mentioned by Pietro Verri in the Orazione panegirica.

In essence, if we return to Alessandro Verri’s essay on Carneades and Grotius, the conclusion was certainly not that of rejecting in toto the science of the law of nature and nations. As in the case of Roman law, the critique did not involve a total rejection, but a qualified reconsideration that marked a radical break not only with the representatives of tradition, like Senator Gabriele Verri, but also with those who, like Venanzio de Mays, had introduced the teaching of this discipline into the chair of public law.⁴² While in Italy the success of Grotius and Pufendorf in the mid-eighteenth century was reflected in the translation of their works, the members of the Academy of Fists, and in particular the Verri brothers and Beccaria, had already distanced themselves from those authors in favour of Montesquieu, Vattel and Rousseau.

Alessandro’s critique of Grotius was radical and took to the utmost the accusation of tyranny and despotism made by Rousseau. The contraposition of Carneades and Grotius served to shed light on what Alessandro saw as the contradictory arguments of the latter to justify slavery on the basis of a presumed ‘law of nature’ as well as his arguments on the possibility of making pacts of unconditional subordination, which Verri saw as a form of voluntary servitude so extreme that it involved the obligation to renounce one’s right of defence and advantage:

These are ideas that recall the essential statements of Dei delitti e delle pene, making explicit the basic premises of contract theory: there are reasons why contracts can be null and void, and these mainly coincide with the principle of voluntariness and rationality, and whose justice or injustice depend on the advantage of the contracting parties.

This made it possible to pour criticism on the theories of Grotius, who, it was considered, by confusing law with fact, justified both tyranny and tyrannicide and sedition, and allowed a right of war that granted permission to commit any atrocity against the enemy: ‘The voice of nature screams against these blood writings’. The conclusion was a rehabilitation of Carneades in the very name of the rights of nature:

The condemnation of Grotius continued in Alessandro’s article ‘Di alcuni sistemi del pubblico diritto’ (1766), which went on to criticize also the theories of Pufendorf and Gravina on the origins of society. Albeit in different ways, all three of these authors were thought to justify war against nations that violated ‘the first laws of humanity’. Grotius, in particular, was deemed to hold that it was permissible to punish primitive peoples as if they were ‘enemies of the human race’. At this point Verri made a criticism of the ‘humanitarian’ war that justified conquest in the name of compassion:

Verri was undoubtedly aware of the debates on the various currents of natural law, the different positions on the power to punish and on just war, and his preference for the doctrines of Rousseau, although not explicitly cited in these two contributions to Il Caffè, and for Vattel is undeniable:

In this way Vattel was considered the author who was able to develop the science of public law (or the law of nations) by basing it on the true interests of the nations.

If we pause to consider the meaning of this praise for Vattel, it seems impossible to interpret it as a critique of natural law, given that the subtitle of the Droit des gens was ‘ou Principes de la Loi naturelle appliqués à la conduite et aux affaires des Nations et des Souverains’. The fundamental point seems to me to be the contraposition between the ‘human heart as it is’ and ‘as we might wish it to be’. As the essay on Carneades and Grotius shows, as do other writings of the members of the Academy of Fists, the anthropology of utility looks at the motives behind human action, bringing them back to a single principle, that of self-love, the pursuit of pleasure and escape from pain, provided, however, that utility does not only mean material or present interests. The concept of utility included, for Vattel and for Pietro Verri in Meditazioni sulla felicità, otherworldly goods, long-term goods, of which compassion and an easy conscience are a part.

Following the tradition of well-understood self-love, the Verri brothers and Beccaria rejected a double position in matters of moral justice: the hard-line one that sees virtue as self-renunciation⁴⁷ and the dualist one, which identifies in compassion a principle of sociality distinct from self-love and therefore draws a distinction between duties performed for oneself and those performed for others. On the opposite side, we find the critique of amoral realism embodied in Machiavelli, who, according to Verri, legitimized both tyranny and wickedness, choosing to forget that ‘men have hearts and are capable of terrible remorse’. The theoretical vice of Machiavellianism ran parallel to that committed by those who based moral principles on reason: ‘you establish the principles of righteousness as if men did not feel, as if there were no painful feelings in the soul, as well as in human limbs’.⁴⁸

The proposal made by Alessandro Verri – as well as by other members of the Academy of Fists – was for a rational science of public law, construed as part of a broader science of ethics and politics, namely that of the ‘science of humanity’ that had evolved since ancient times⁴⁹ and ultimately consisted of a doctrine of legislation and duties. As a science, the determination of its first principles and the deduction of its consequences belonged to reason, and competence in it resided with the ‘humane philosopher’. The raw material of the science is human nature, but not all men are able to understand themselves and the motives for their actions: ‘It is certain that man is constantly in search of his utility. Let us therefore base the system on this. Only the man who thinks about them, sees utility relationships: everyone seeks happiness, desires it, and has a confused notion of it’.⁵⁰

The rationalism of the moderns, whose principal representative was considered to be Pufendorf, produced a science of duties predicated on the false assumption that all men are rational and therefore guilty when they ignore the right standard of moral action. This system translated into a circular logic and an injustice: on the one hand, it considered natural law only as a rational science, forgetting that not everyone was capable of developing reason to the point of being aware of these standards. On the other hand, by wrongly presupposing that such standards were clear and knowable by everyone, it did not recognize ignorance as an extenuating factor. Modern moral rationalism was therefore impaired by its erroneous conception of responsibility and the imputability of human actions, and thus failed to distinguish the guilty from the innocent.⁵¹

4 The Ignorant Citizen and the Citizen Philosopher

Alessandro Verri’s texts help to clarify the dual anthropological and epistemological level on which the philosophical and political project pursued by the ‘Milanese school’ proceeded, and the particular articulation of passions and reason, of particularism linked to historical context and the universality of principles of justice. While there is only one human nature and the science of man is ancient, there are different gradations in which the elements of human nature, passions and reason combine, depending on the individual and the level of development of nations. Human nature is at the same time variable and immutable. An enormous interval was considered to separate savage nations from civilized ones and to divide the ‘common rustic’ from the ‘sublime philosopher’.⁵² This contrast can be found in Beccaria’s manuscript of On Crimes and Punishments, which in fact aimed to demonstrate how public legislation should account for the fact that its intended beneficiaries are not only rational beings, but also others, of all conditions, thus assuming that men animated by the desire for personal happiness may have a limited ability to weigh up ‘utility relationships’.

In the revised version of the work by Pietro Verri, the latter changed the terms, reducing to a common denominator the differences, which lose the social and individual absoluteness of the first version: ‘the ignorant citizen and the citizen philosopher’⁵³ are both members of society and their differences do not cancel out their common traits as ‘citizens’. But the terms of the question do not change: the human material that is the object of politics is identical to that of the science of man and concerns a being endowed with a mixture of reason and passions. Man’s freedom consists in the possibility of choice, and the ability to choose is reduced the greater the grip of the passions is. Torture is the perfect example of how the domination of pain can become unnatural by annihilating freedom of choice and using the individual’s desire for self-preservation to bring about self-destruction, through forced confession.

The law and the government – as long as they are not tyrannical – must intervene in this space of liberty in order to transform individual interests into public happiness. Far from presupposing a spontaneous or natural harmony of interests, the members of the ‘Milanese school’ considered the legislative sphere crucial to correct the ‘confusion’ of the ‘ignorant citizens’, starting by administering a judicious dose of incentives and disincentives. Given these premises, the sphere of politics depended on the broader one of moral justice, of which it was a part, but at the same time must disregard any consideration that was not properly linked to the goal of preserving political society. The exclusion of religious motives did not simply respond to an editorial strategy of self-protection from censorship but was based on a distinction rooted in the tradition of natural law. Having said that, the preservation of society did not exclude religion from matters of relevance to government and legislation.⁵⁴

The fundamental point, however, was the role attributed to the ‘citizen philosophers’ or to the ‘philosopher jurisconsults’. While the ‘ignorant citizens’ were the targets and beneficiaries of social laws, the philosopher citizens, qua citizens, were like the ignorant citizens, but, as philosophers, were the experts who must develop the science of legislation and therefore instruct sovereigns on the reforms to be undertaken, as did those citizens who aspired, through higher education, to become part of the ruling class.

So we see that the conception of law and economy elaborated by members of the ‘Milanese school’ was aimed at redefining the hierarchies of power and knowledge in a way that largely coincided with the reformist politics of the Austrian government. In the new ‘Piano scientifico per l’Università di Pavia’ of 1773, the first of the newly established faculties was that of philosophy, whose subject is the science of man, who ‘must know himself, other things, their different relationships, and the alterations they have undergone, in order to benefit from them for his own education and happiness. All this is the purpose of Philosophy, the most important of all the studies’.⁵⁵ In first position among the proposed courses we find logic and metaphysics, understood as the study of knowledge and its progress, and of the language and method relating to the discovery of truth. After this comes moral philosophy, which combined natural law with utilitarianism and sensualism, similarly to the ‘pugilists’. The foundation of obligation refers back to the existence of God, who is known through sentiments inspired by the ‘spectacle of nature’.⁵⁶ This is therefore a natural law independent from revelation, whose precepts are derived from a sociability based on self-love: ‘Man is weak, he needs the help of others: he recognizes in them their similar shape, actions, and needs; He recognizes them as his equals; This is the source of all social duties, of that love of one’s Neighbour founded on the first Laws of sociability and on properly understood self-love’.⁵⁷

It is not possible to follow in detail the contents of the plan, but the references to first principles, to a method of instruction aimed at creating debate and not erudition, emerge repeatedly. History is the continuation of morals and the person called to teach it must be a ‘Philosophical Man’, who knows how to ‘unfold its causes, deduce its effects, and investigate its circumstances, thus weaving a genuine essay of Philosophical History and of the human heart’.⁵⁸ As such, there is a strict connection between moral philosophy, natural law and the teaching of jurisprudence in the broadest sense as a science of society: ‘The security, property, peace and harmony of society are the most essential and precious things. The task of procuring and preserving them falls to Jurisprudence and the more noble Philosophy, founded on the intimate understanding of the human heart’.⁵⁹ Particularly with regard to the teaching of law, the objective was to establish a new ‘model of the jurist’, and thus ‘in time producing a Philosophical Jurisconsult and a Legislator’,⁶⁰ as Senator Pecci wrote in the ‘Plan of Legal Studies’ from 1767, in full agreement with Alessandro Verri’s proposal in Il Caffè.

In short, there was a clear convergence between the reform plans and the pugilists’ battle to overthrow the existing hierarchies of knowledge and power. Both ascribed primacy to the legislative philosopher, as the one responsible for recovering the true principles of natural and political law and serving as a true adviser to the prince. The new hierarchy reduced and then swept away the intermediary bodies and common law, but it did not translate into a form of omnipotence for legislative power and positive law; rather, it meant a despotism of laws derived not from the will of the legislator, but from the principles of philosophy.⁶¹ The clearest example is the teaching of criminal law, which Beccaria gave a new foundation by tracing its principles to those of public law and the theory of the social contract.

5 The Principles of Criminal Law: On Crimes and Punishments

Even though the contribution to the history of economic thought made by the ‘Milanese school’ has been widely recognized, it cannot be denied that its biggest breakthrough and most original work was Beccaria’s famous treatise, Dei delitti e delle pene. The work represented a methodological revolution in the field of criminal law.⁶² With the education reform, the Austrian government also aimed to introduce criminal law as an independent subject of study. In traditional curricula it had been included either in the final part of the Justinian Institutes, dedicated to obligations that originated ex delicto, as shown by the treatise of Venanzio de Mays, or else in lessons on local law. In treatises of politics and the law of nature and nations, from Pufendorf to Burlamaqui and Vattel, the power to punish was considered a prerogative of sovereignty and consequently constituted one of the most important parts of political or civil law, once again defined, in the language of the Verri brothers, as ‘particular public law’, which, together with universal public law – in other words the law of nations – was one of the two branches of public law.⁶³

At the very time Beccaria was working on the first draft of his masterpiece, the original title of which was Delle pene, e delitti, the Milanese Senate published, on 5 October 1763, a call for professorships to be filled in the Palatine School of Milan and in the University of Pavia in accordance with a reformed study plan instead of the traditional one. Among the disciplines included was that ‘Of criminal practice, or of crimes and punishments’.⁶⁴ If we are right to surmise that among the members of the Senate who had issued the call was the father of the Verri brothers, it seems hard to believe that the members of the Academy of Fists, at the very time they were beginning their implacable fight against the Senate and local jurisprudence, ignored the title of that chair and that the decision to rethink the order of the title of Beccaria’s work was not partly inspired by it. The plan for the French translation of Dei delitti e delle pene, launched and then abandoned by Pietro Verri in 1764, appears to have been the counterpoint to that course of studies: Des délits et des peines, ou Principes de la jurisprudence criminelle.⁶⁵ The title opposes principles against practice, against the claims of sovereignty by a Senate acting as judge and legislator and resorting to arbitrary judgements, torture and the death penalty.

The radical innovation of Beccaria’s text consisted precisely in the rigorous deduction of the principles of the power to punish from the theory of the social contract, thus filling a gap in eighteenth-century moral and political science, which had already developed, through Rousseau and Vattel, ‘the true relations between the sovereign and the subjects, and between the nations’.⁶⁶ However, this genuine theoretical originality cannot be interpreted as being opposed to natural law, since public law presupposes natural law and the science of politics depends on moral science.

The tripartition of ‘revelation, natural law and the conventions arrived at by society’ seen as the three main sources of the ‘moral and political’ principles ‘regulating mankind’ was not a mere screen erected to protect the work from religious censorship.⁶⁷ Pietro Verri had already made mention of this tripartition in his Meditazioni sulla felicità, which he found in Protestant theories of natural law that had distanced themselves from revelation. The tripartition also inspired the plans for the reform of the university, which aimed to bring the teaching of theology under state control, albeit while seeking mediation with the ecclesiastical institutions. Theology found itself in fourth place in the list of faculties proposed by the various reform projects, reflecting the marginalization of revelation and the Catholic religion in contrast to natural law, which remained central, but was nevertheless inscribed in the ‘heart’ of man, and had principles which could be discovered rationally.

The separation of religion and politics, of sin and crime, that is clearly established in Beccaria’s work can also be found in the more cautious but no less decisive reform plans. In lessons on criminal law, professors had to demonstrate ‘What is the nature and essence of crime, and the difference between the moral and political order in this matter’. In consequence, the principle of proportionality between crimes and punishment and the purpose of penal laws, namely ‘the wellbeing of the Public’, were affirmed. From these premises a three-part division of ‘criminal law’ was established: (1) the nature of crimes and punishments, (2) the judicial authority, termed the executor, and (3) criminal procedure.⁶⁸

From this perspective, and in particular in the Milanese context, bracketing revealed religion – another of Il Caffè’s defensive editorial strategies – did not mean abandonment of natural law. Correctly understood, the latter continued to constitute the boundaries of what was conceivable within the social and political science proposed by members of the Academy of Fists.

The reference to the inalienable right to self-defence that appears in the various editions of Dei delitti, in other words to the ‘rights of man’, is repeated in Pietro Verri’s Osservazioni sulla tortura. And in chapter 16 of the Ricerche intorno alla natura dello stile, which remained unpublished, Beccaria, musing on the origin of the idea of justice, wrote: ‘right can be defined as a necessary consequence of the use of our faculties, and justice as not preventing others from using the same faculties; just as duty may be defined as that which is necessary for us to do to ensure that the necessary use of the faculties of others is not impeded’.⁶⁹

Therefore, if any difference can be discerned between the reform projects and the works of the ‘pugilists’, the most important one is that the former make no reference to inalienable rights of man nor to the possibility of finding a discrepancy between the duties of man and the duties of the citizen established by positive law. The ‘pugilists’ obviously thought that such discrepancy must be judged by the individual, who might then exercise a legitimate right to disobedience, if not outright resistance.⁷⁰

6 Conclusions: The ‘Pugilists’ in the University Reform and the ‘Imbroglio’ of the Chairs

As is well known, on 9 January 1769 Beccaria delivered his inaugural lecture as professor of cameral sciences, a discipline later renamed ‘public economy’.⁷¹ Rather than an intentional choice, the creation of this position appears to have been the result of a series of circumstances that dramatically altered the original plan to give the author of the Delitti the chair of public law in the Palatine School of Milan.

On 25 June 1765 Beccaria wrote to the chancellor, Prince Welzel Anton Kaunitz, requesting his support for his application for a post. The reform of the university was at a turning point, the Senate had been deprived of its educational competences, and the new delegation appointed by Vienna had begun its work. The wording of the message does not appear to leave any doubt: by sending the prince the ‘two little books’ he had published up to then, Del disordine e de’ rimedi delle monete nello Stato di Milano and the third edition of the Delitti, the young marquis explained that he had no interest in ‘forensic studies’ and the ‘career of the gown’. This was therefore a clear rejection of forensic jurisprudence and judicial practice, but not of the law in general. In fact, the text continues, ‘I have always made my delight and my occupation those sciences that pertain to the regulation and economy of a state’.

The first version of this sentence had read ‘of politics and the public jus, of the finances, of commerce and of that which belongs to the […]’.⁷² Beccaria was not requesting just any position, but a professorship in the political sciences, which included public law and public economy. The ‘jurisconsult philosopher’ was writing to offer his knowledge in the context of the reform of the institutions and of the education system theorized by the ‘pugilists’. A few months later Vienna revoked responsibility for trade matters from the Milanese Senate and with a royal dispatch dated 20 November 1765 established the Supreme Council of Public Economy, which Gian Rinaldo Carli and Pietro Verri joined.⁷³ In October 1765 the marquis repeated his request, this time asking for a position in the same council, but was once more made to wait.⁷⁴

In the meantime, the fame of his book spread like wildfire. The French translation brought him an invitation to Paris and led to his famous journey to the capital of the philosophes in the autumn of 1766, accompanied by Alessandro Verri, who had been encouraged to go by his brother Pietro, whose work commitments did not allow him to leave Milan. The trip, though, was marked by conflict between Beccaria and Alessandro, which resulted in the end of the intellectual and personal solidarity of the members of the Academy of Fists. But it did not disrupt the strong network of relations between Milan and Vienna that helped to find an ‘annexation’ (annicchiamento) in the Viennese administration for the pugilists and their friends.

Meanwhile, Catherine the Great of Russia had discovered the young Italian’s work and invited him to Moscow. Beccaria used the invitation by the Russian sovereign to ask Vienna for a position at home. In this he was helped by friends who were preparing the plan to reform the university, in particular Gian Rinaldo Carli and Nicola Pecci. The latter, when drafting the ‘Piano di studi legale’, proposed, apart from the chair in public law at the University of Pavia held by Venanzio de Mays, the introduction at the Palatine School of Milan of a course in public law which, in an initial plan, covered, within ‘particular public law’, also the ‘Rules of public Economy, of luxury, of Sumptuary Laws, exportation and importation of goods, the procedures for civil and criminal judgments, and of testamentary dispositions’.⁷⁵ Intended for a wider audience than that of students preparing to embark on a career in courts, as judges, lawyers and notaries, the course at the Palatine School was conceived as part of the general training of citizens who aspired to play a part in public administration. The right person for the role was Beccaria, who was the subject of correspondence in the spring of 1767 between the Count of Firmian and Prince Kaunitz, who declared himself in favour of introducing the chair in Milan and of assigning it to a young man who, unlike many Italians, intended to dedicate himself to the study of philosophy and not ‘merely to the trivial jurisprudence of the court, deprived of any erudition, or to frivolous studies’.⁷⁶

A dramatic change occurred during the autumn of 1767: Beccaria’s name had become attached to a different chair – still at the Palatine School in Milan – that in cameral sciences. Was this destiny or chance? We know for certain that the first version of the ‘Piano degli studi legale’ written by Nicola Pecci and sent to Vienna on 10 September 1767 did not include a chair in economics or cameral sciences. This professorship was instead proposed in the documents accompanying the plan, and for this very reason Prince Kaunitz, in his response to the plan of 16 November 1767, which was very critical of the project but enthusiastic about introducing to Milan a course in cameral sciences like the one held by Sonnenfels in Vienna, expressed his disappointment that the description of the course had not been included in the academic plan.⁷⁷

We might therefore presume that the idea of doubling the Milanese chair of public law and creating a parallel one in cameral sciences had come to the members of the Deputation only belatedly, when it was no longer possible to alter the plan before sending it to Vienna. What had happened in the meantime?

Perhaps the answer lies in the correspondence between Pietro and Alessandro Verri. The latter, when Beccaria returned to Milan in November 1766, left for London, where he remained a couple of months. He then returned via Paris to Italy where, without passing through Milan, he headed for Tuscany and eventually ended up in Rome. The letters between Alessandro and his brother gradually reveal a desire on Alessandro’s part to turn his temporary journey into a permanent abandonment of the city of his birth, while Pietro, hoping for his brother’s return, made strong arguments against. And in this crescendo of emotions, Pietro sought to entice Alessandro back to Milan with promises of employment, thanks to the support of Firmian and of Carli.

However, Alessandro made plans to establish himself elsewhere, as he feared a return to his family. At a certain point he dreamed of a chair in Pisa, hoping for the support of Pompeo Neri:

Pietro, disconsolate, dissuaded him, just as he stated his opposition to Alessandro journeying to Vienna to ingratiate himself with the Habsburg authorities. At a certain point, however, the situation came to a head in an alarming manner. In Rome Alessandro fell in love with a married woman and risked never returning to Milan. Pietro first attempted to ‘disillusion him’ by casting severe doubts on the respectability of his lover. Then, when Alessandro confessed his genuine love, the unexpected ‘imbroglio’ of a chair in public law appeared. In a famous letter of 17 October 1767 a distraught Pietro informed his brother that, through no fault of his own or of his father, Gabriele, the request for the creation of a chair of public law at the Palatine School had been sent to Vienna on Alessandro’s behalf. By a series of circumstances and misunderstandings, Count Gabriele Verri, urged by Paolo Frisi, Nicola Pecci and Gian Rinaldo Carli, had already made a formal commitment to the Viennese authorities on behalf of his son. What, in the end, would it cost him to commute between Milan and Rome, the older brother asked, probably in league with his father. It would be too difficult to turn back now.⁷⁹ But Alessandro, indignant, asked his brother not to interfere further in his personal pursuit of happiness and firmly rejected the proposal.⁸⁰

We can only imagine how things went. Faced with the threat of a permanent estrangement from Alessandro and a romantic attachment that would have been difficult for the family to swallow, Pietro and Gabriele Verri increased their pressure on their friends to find Alessandro not just any position, and one that he probably would not want, but a ‘niche’ in the reform of the university, thus indulging his passion for ‘letters’. The main protagonists, the Verri family, Carli, Firmian and Pecci, hurriedly found a solution in the idea of doubling up the chair in public law and offering Beccaria the equivalent position in economics as compensation. This explains the unexpected appearance, in the presentation of the plans sent to Vienna in September 1767, of the course in cameral sciences.

Alessandro’s refusal to return to Milan and renounce his happiness, and Kaunitz’s enthusiasm for the proposal of a course in the cameral sciences led to a modification of the initial project. The course in public law in the Palatine School of Milan would be dropped and Alfonso Longo would be given the task of presenting lectures in ecclesiastical public law. Beccaria would instead find himself hurriedly compiling, for Gian Rinaldo Carli, the plan for the chair in cameral sciences and his course. This, launched at the start of 1769, would be the first step in the reform that would be fully enacted only in 1773, when Beccaria, despite the success of his lectures, having already obtained a position as an ‘employee’ in the Council of Cameral Sciences, abandoned the university post.

These were the crossed destinies and dreams that resulted in the less than ‘triumphal’ entry of economic science into the Palatine School of Milan. Far from being an autonomous science, to Beccaria’s mind as well as to others involved in the reforms, while public economy was indeed a fundamental branch of knowledge, it was not the backbone of a political science, but instead remained firmly anchored in morality and the law of nature and of nations.