Penal Philosophy in 18th Century Italy: A Historical Enquiry into the Ideas of Francesco Mario Pagano

This master thesis is an analysis of the ideas of the Neapolitan enlightenment philosopher Francesco Mario Pagano (1748-1799) on criminal law. Pagano was in many ways a culmination of 18th century penal philosophy. He argued that one ought to make a science out of criminal law. The 18th century saw major shifts in the way criminal law was perceived. The use of torture was almost universally condemned by the enlightenment philosophers, and some even questioned the legitimacy of capital punishment. Criminal law, most enlightenment philosophers argued, had to be based on principles of utility, necessity, proportionality, and on the rule of law. Criminal law had to follow a set of rules and principles from which it should not deviate. Pagano s penal philosophy is especially influenced by philosophers such as Beccaria (1738-1794), Montesquieu (1689-1755), Filangieri (1752-1788) and Helvétius (1715-1771). While all of Pagano s influences were contractarians, meaning that they viewed criminal law as the result of a social contract, Pagano rejects the contractarian view and argues that criminal laws stem from natural and eternal laws. Another point of interest is that Pagano advocates retributive justice, which most enlightenment philosophers condemned. He argues in favor of retributive justice in a legal sense, meaning the loss of a right for the violation of a right. This thesis seeks to illuminate the relatively unexplored reflections of Pagano on criminal law and to demonstrate how he continues to build on the ideas of his intellectual predecessors