Abstract

In spite of his stature as a major figure in the history of political philosophy and his strong interest in the correlation between liberty and the content of criminal law, surprisingly little has been written concerning Montesquieu's views on crime and punishment. Even less has been written about his views on the philosophical justification of punishment. Unlike Locke, Rousseau and Beccaria, he did not use social contract theory to justify punishment. Close analysis of Books VI and XII of The Spirit of Laws (1748) reveals that he combined utilitarian, retributivist and liberal themes in his approach to punishment, while locating the fundamental justification for the right to punish capital crimes in the retributivist rationale of doing justice. As noted by Beccaria and numerous others whom he influenced, moderation in punishments and decriminalization of religious offences were key themes in his discussions