• 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.

• 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 1^st, 2017 (after the French legislature had passed new counter-terrorism legislation on October 3^rd, 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