Corruption and Whistleblowing: Beccaria and Montesquieu on Secret Crimes and Secret Accusations

In recent years, with the increased scholarly and legislative attention to the problems of public and private corruption, there has been a great deal of emphasis placed upon "whistleblower protection" laws. These laws shield from possible retribution any government or business employees who, in order to prevent corruption or wrongdoing in their organizations, divulge sensitive information to journalists or law enforcement authorities. Often these policies allow for anonymity.¹ Anonymous accusations are often particularly favoured because, even when there are laws protecting whistleblowers from professional reprisal, people often remain hesitant to denounce corruption where powerful interests are involved. Since corruption functions with the powerful colluding to intimidate the powerless, the solution of having secret accusations appears quite attractive. Who would dare break their public trust if they thought that every coworker or underling might denounce them?

Beyond being a mode of controlling corruption, the practice of soliciting anonymous accusations is widespread as a means of disciplining populations. We see increased reliance on such practices particularly in cases in which there is a perception that there exists widespread collusion to circumvent laws. Anonymous tip lines and denunciation websites have proliferated in many jurisdictions to control both abusive behaviour on the part of officials and to control populations more generally. They are a very popular tool both among those who wish to contain the powerful and among those who wish to control the powerless.²

Of course, whistleblower protection laws, tip lines, and other invitations to anonymous denunciations do not usually eliminate the fundamental requirement of justice for accusers to be known when criminal trials occur, but they do raise serious concerns about the possibility of slander.³ Even worse, such programs naturally raise the specter of the universal surveillance and arbitrary power associated with the worst totalitarian excesses. Yet, paradoxical as it might seem to reformers enamoured with the widespread ideals of publicity, transparency can sometimes derive from a degree of secrecy. This is a principle we know well in other arenas. The secret vote, for instance, allows voters to express themselves politically at the ballot box, free from intimidation or bribery. The vote serves as a means of illuminating the true opinion of the populace precisely because it renders invisible the particular votes of individuals. Secret accusations promise to render one thing visible by veiling another.

When does secrecy reveal, when does it obscure, and what are the political implications of having mechanisms for secret denunciations? This paper explores these questions by examining an early modern republican institution that was a source of widespread unease and wonder: the Venetian model of secret accusations. Venice, for many a model of republican liberty, had a body of State Inquisitors who solicited both anonymous and confidential denunciations of corruption and who had extremely wide powers of investigation and punishment. The practice naturally permitted both the type of anticorruption revelations that we would characterize today as whistleblowing and all sorts of acts of calumny. This article examines the manner in which this institution was evaluated by two Enlightenment philosophers whose reflections on crime and punishment are generally linked together: Cesare Beccaria and Charles-Louis de Secondat, Baron de la Brède et de Montesquieu. Beccaria, the Milanese philosopher and reformer, was a great admirer of Montesquieu—indeed, he has often been treated straightforwardly as one of Montesquieu's intellectual heirs.⁴ But he differed from Montesquieu with regard to the utility of secret accusations in Venice. Where Montesquieu thought such a dangerous institution a necessary evil in an aristocratic republic, Beccaria denounced secret accusations as corrupting in all types of regime, and he particularly denounced them in republics. This article examines the basis for this disagreement and sheds light on the important differences it reveals between the two thinkers and the manner in which they conceived of liberty and its protection. Beyond illuminating the gulf between these two writers, exploring their difference of opinion on Venetian institutions reveals the fundamental ambivalence at the heart of secret accusations themselves. Montesquieu's qualified justification of this procedure in Venice is based on the immoderation of the regime...