Essay on Classical and Neo-classical Theories of Crime

Classical and Neo-classical Theories of Crime

Classicist explanations of crime and punishment were developed in the second half of the eighteenth century. In fact, these theoretical explanations developed as a reaction of enlightened thinkers and political reformers to arbitrary systems of justice and barbarous codes of punishment which prevailed up to the end of the eighteenth century.

They demanded a legal system that would defend the interests of criminals and protect their rights and liberties. They believed in the ‘contract theory’ of the origin of state (propounded by Rousseau), that is, regulating the conduct of free individuals who were bound to one another within the society by a fee and ‘legal’ contract between free and equal individuals.

According to Rousseau’s doctrine of social contract, men were absolutely free and independent in a state of nature but surrendered a small part of their freedom through a social contract in order to secure the benefits of union.

The doctrine of social contract has no foundation in history, and Rousseau himself probably knew that it was a fiction, but it gave him a basis upon which to plead the cause of liberty and to protest against tyranny.) Thus, individuals were conceived as free, rational and sovereign individuals, capable of defining their self-interests and rationally thinking of the consequences of their actions.

They, therefore, thought of state/society not as something sovereign but as something which individuals had contracted to establish for their individual and mutual benefits. In this way, they sought to limit the. Power of the state to the defence of rights and liberties, as well as safety and security of the individual.

The classicists define crime as behaviour which violates the social contract, which is detrimental not to the state as such, but to the personal safety and property of those individuals in society whose decision to ‘contract in’ founded the authority of the state.

Thus, for classicists, an act like tax-evasion might be widespread and generally condoned as ‘normal’ but it would be necessary to legislate against it because it is anti-social and against social justice.

For them ‘legal’ rather than ‘natural’ definitions are paramount in the definition of crime, i.e., crime according to them is infringement of legal code, not of a social norm. It is only by “due process of law” that it can be ascertained whether a particular act is a crime or not.

Classicists concentrate not on circumstances and influences but on the criminal act itself. If illegal, judged as the law defines it in the light of the social contract, then the act should be punished proportionately, with unwavering certainty, severity, and impartiality. Classicists thus accept neither the arbitrary exercise of terror not the discretionary application of justice.

They also maintain that the law should not be involved in the control of any activities which do not harm others or do not threaten the social contract. Individuals should be free to do anything they like, provided what they do is not proscribed by law. Law and morality should be regarded as separate spheres: the one regulating the public concerns; the other, the individual judgement and private reasoning.

The cause of crime in the classicist paradigm relates to the question of rational calculation where the ‘benefit’ is greater than the ‘cost’. For this reason, punishment must be made so strict that an individual would be deterred from committing crime again.

The propounded of the classicist explanation was an Italian thinker, Beccaria who was influenced by the writings of scholars like John Howard. Beccaria (Essays on Crime and Punishment, 1764) maintained that: (a) human nature is rational, free and governed by self-interest, (b) social order is based on consensus and social contract, (c) crime is infringement of the legal code and not of social norm, (d) distribution of crime is limited and is to be ascertained through a ‘due process’, (e) crime is caused by an individual’s rational motivation, (f) crimes should be judged by a jury of one’s peers, i.e., by other rational and equal individuals.

The judges should be guided by a clear and systematic legal code and (g) in punishing the offender, the principle of ‘restraint’ should be observed, i.e., sentencing should be limited to applying a prior, agreed and fixed set of penalties.

The classical school of criminology had four important principles. First, the rights and liberties of an individual must be protected. Second, all persons who commit the same crime should be punished alike.

Third, crime is a judicial abstraction and therefore a definite penalty should be attached to each crime and invariably inflicted. Fourth, punishment should be limited by the social need. Its social utility consists in its deterrent influence and as much of it should be inflicted as is necessary to prevent others from committing the same crime.

The main postulates of Beccaria’s classical explanation (Cf. Schafer Stephen, 1969: 106) are:

1. Man’s behaviour is purposive and rational and is based on hedonism or pleasure-pain principle, that is, he consciously chooses pleasure and avoids pain.

2. Punishment should be assigned to each crime and the measure of punishment should be the injury done to the public welfare by a crime. Pain should outweigh any pleasure derived from the commission of crime.

3. Punishment should not be very severe and deterrent and it should also be proportioned to crime, pre-determined, prompt and public. Torture should be abolished, more use should be made of imprisonment instead of corporal punishment, and a fair trial should be insured.

4. Law must apply equally to all citizens.

5. Legislatures should clearly enact the law and prescribe specific punishment for its violation. Judges should not interpret the laws according to their own ideas of justice but should only decide whether or not a person had committed a crime (violated the law). In other words, courts should only determine innocence or guilt and thereafter prescribe the set punishment.

The major arguments against the classical explanation are:

(1) Classicists assume that all men are free, rational and equal. None has priority of rank or status, and no prior handicaps or advantages. But the real world does not in any way resemble this ideal model. Even classicists accept the competitive model of man, where seeking advantage (acquiring property, accumulating wealth) is precisely the most rational of motivations.

These generate, as the necessary consequence of a competitive system, massively unequal distribution of advantages and disadvantages. There is, thus, contradiction in classicism. Jock Young (Cf. Fitzgerald, et al., Crime and Society, 1981: 264) has also said that all problems in classicism flow from this central contradiction.

(2) If men are equally rational, as claimed by classicists, why do they violate the law at all? Should not reason regularly prevail? Further, if all individuals are equally endowed with reason, why do the poor regularly commit so much more crime than the rich?

Young also asks a question: if classicists are right in their view (that all individuals are equal and rational) why do statistics on crime in the United States (and for that matter in any other country) take the shape of a pyramid (as shown below) in which a labourer is found fourteen times more likely to go to prison than a professional?

(3) All criminals are to be treated alike without differentiating them on the basis of age, sex or intelligence.

(4) No importance is given to the nature of crime (that is, whether the crime is a felony or misdemeanour) or the type of the criminal (that is, whether he is a first offender, a casual offender, a habitual offender, or a professional offender).

(5) Explaining an individual’s behaviour merely on the basis of doctrine of “free will’ and suggesting punishment on the principle of ‘utilitarianism’ is only an armchair philosophy which considers crime in the abstract and lacks scientific approach in objective and empirical measurement.

(6) There is no provision for justifiable criminal acts.

(7) Beccaria and Bentham were more concerned with reform in the criminal law (like mitigation of severity of punishment, removal of defects in the jury system, abolition of transportation and capital punishment, and in the adoption of a prison philosophy) and regulating morality, than in controlling crime or in the development of criminological theories.

The British neo-classicist criminologists revised the classical theory in 1810 and 1819 and (a) provided for judicial discretion under objective circumstances, (b) introduced the idea of minimum and maximum sentences, (c) recognised the principle of extenuating circumstances, and (d) described the concept of equal justice as unreal, suggested giving importance to age, mental condition and situations in fixing punishment to criminals.

Children under seven years of age and mentally diseased persons were to be exempted from the law (Void, 1958: 25-26; Reid, 1976: 113-14). In spite of these changes, the neo-classicists continued to accept the principles of free will of man and hedonism.

Besides, unlike the classical school, this school did begin to deal with the problem of causation. By making exceptions to the law, varied causation was implied. However, this school also has not been considered a scientific school of criminology.