Classical Criminology
SOC371
Chuck Lanfear
Jan 6, 2021
Updated: Jan 6, 2021
Overview
Historical Context
- European Despotism
- The Enlightenment
- Beccaria
Theoretical Assumptions
- Rationality
- Social Contract
Principles of Justice
- Punishment
- Criminal Law
Criticisms
Historical Context
18th Century Europe
A "successful despotism", characterized by:
Arbitrary power of aristocracy and church
Laws against criticism of state and religion.
Power of church and state was fairly absolute, and beyond question.
18th Century Europe
A "successful despotism", characterized by:
Arbitrary power of aristocracy and church
Laws against criticism of state and religion.
Militarized police with extensive spying
Power of church and state was fairly absolute, and beyond question.
Secrete police were commonplace to spy and report anyone working against government... or just doing anything frowned upon by church or crown.
18th Century Europe
A "successful despotism", characterized by:
Arbitrary power of aristocracy and church
Laws against criticism of state and religion.
Militarized police with extensive spying
Torture widespread for compelling testimony or doling punishment
Secret accusations and presumption of guilt
Power of church and state was fairly absolute, and beyond question.
Secrete police were commonplace to spy and report anyone working against government... or just doing anything frowned upon by church or crown.
Vicious, severe torture could be used in almost any case, including without evidence of crime--to GET evidence of crime.
This could happen when someone accused another in secret, and without someone knowing what they were accused of.
Interestingly presumption of innocence dates back to at least the Code of Hammurabi almost 4000 years ago
But hammurabi also codified class stratification
18th Century Europe
A "successful despotism", characterized by:
Arbitrary power of aristocracy and church
Laws against criticism of state and religion.
Militarized police with extensive spying
Torture widespread for compelling testimony or doling punishment
Secret accusations and presumption of guilt
Widespread corruption
Power of church and state was fairly absolute, and beyond question.
Secrete police were commonplace to spy and report anyone working against government... or just doing anything frowned upon by church or crown.
Vicious, severe torture could be used in almost any case, including without evidence of crime--to GET evidence of crime.
This could happen when someone accused another in secret, and without someone knowing what they were accused of.
Interestingly presumption of innocence dates back to at least the Code of Hammurabi almost 4000 years ago
But hammurabi also codified class stratification
Amidst these conditions, a social and intellectual shift was occurring.
The Enlightenment
A philosophical and scientific response to the social context of continental Europe.
Grounding: Reason and empiricism
- Emergence of social sciences--"a science of man"
- Theories of governance: natural laws as basis of order
Large expansion and formalization of physical sciences seemed naturally to suggest we could do the same for the social world.
Could derive natural laws as foundations for government.
For many, today (and then) envisioned a return to an idealized Greece of Plato
Be wary of beautiful visions of the past written by the wealthy and powerful or those they support.
The Enlightenment
A philosophical and scientific response to the social context of continental Europe.
Grounding: Reason and empiricism
- Emergence of social sciences--"a science of man"
- Theories of governance: natural laws as basis of order
Values: Liberty, progress, and religious tolerance
- People should be free to do as they wish without harming others.
- Response to religious conflict--Thirty Years' War
Large expansion and formalization of physical sciences seemed naturally to suggest we could do the same for the social world.
Could derive natural laws as foundations for government.
For many, today (and then) envisioned a return to an idealized Greece of Plato
Be wary of beautiful visions of the past written by the wealthy and powerful or those they support.
1618 to 1648; Killed upwards of 8 million including 20% of Germany.
Began with the Second Defenestration of Prague when Bohemian protestants threw Holy Roman Emperor Ferdinand's reps out a window then elected a king.
The Enlightenment
A philosophical and scientific response to the social context of continental Europe.
Grounding: Reason and empiricism
- Emergence of social sciences--"a science of man"
- Theories of governance: natural laws as basis of order
Values: Liberty, progress, and religious tolerance
- People should be free to do as they wish without harming others.
- Response to religious conflict--Thirty Years' War
Goals: Reform system to protect individual rights
Large expansion and formalization of physical sciences seemed naturally to suggest we could do the same for the social world.
Could derive natural laws as foundations for government.
For many, today (and then) envisioned a return to an idealized Greece of Plato
Be wary of beautiful visions of the past written by the wealthy and powerful or those they support.
1618 to 1648; Killed upwards of 8 million including 20% of Germany.
Began with the Second Defenestration of Prague when Bohemian protestants threw Holy Roman Emperor Ferdinand's reps out a window then elected a king.
The Enlightenment
A philosophical and scientific response to the social context of continental Europe.
Grounding: Reason and empiricism
- Emergence of social sciences--"a science of man"
- Theories of governance: natural laws as basis of order
Values: Liberty, progress, and religious tolerance
- People should be free to do as they wish without harming others.
- Response to religious conflict--Thirty Years' War
Goals: Reform system to protect individual rights
Results: Undermined authority of monarchy and church--French revolution
- Not necessarily democratic: Plato's "philosopher king"
Large expansion and formalization of physical sciences seemed naturally to suggest we could do the same for the social world.
Could derive natural laws as foundations for government.
For many, today (and then) envisioned a return to an idealized Greece of Plato
Be wary of beautiful visions of the past written by the wealthy and powerful or those they support.
1618 to 1648; Killed upwards of 8 million including 20% of Germany.
Began with the Second Defenestration of Prague when Bohemian protestants threw Holy Roman Emperor Ferdinand's reps out a window then elected a king.
The Enlightenment thinkers were a new form of aristocracy, apart from feudal system
Naturally, they felt the best people to rule the land looked a lot like them.
Might ask, why was European aristocracy willing to consider reforms? There was a mix of feeling threatened by potential uprising, the popularity of the ideas, and wanting to be seen as a philosopher king.
Beccaria
On Crimes and Punishments (1764) was a reformist manifesto and indictment of European justice system.
A response to the appalling conditions of continental Europe
Beccaria
On Crimes and Punishments (1764) was a reformist manifesto and indictment of European justice system.
Like virtually all influential works, a conversation with other thinkers rooted in context.
- Inspired by English justice system
- Social contract from John Locke and Thomas Hobbes
A response to the appalling conditions of continental Europe
Beccaria
On Crimes and Punishments (1764) was a reformist manifesto and indictment of European justice system.
Like virtually all influential works, a conversation with other thinkers rooted in context.
- Inspired by English justice system
- Social contract from John Locke and Thomas Hobbes
In turn, widely influential:
- Jeremy Bentham, most directly
- "Founding Fathers" of the United States
A response to the appalling conditions of continental Europe
Elements can be found in US constitution
Beccaria
On Crimes and Punishments (1764) was a reformist manifesto and indictment of European justice system.
Like virtually all influential works, a conversation with other thinkers rooted in context.
- Inspired by English justice system
- Social contract from John Locke and Thomas Hobbes
In turn, widely influential:
- Jeremy Bentham, most directly
- "Founding Fathers" of the United States
Like most academic work we will study, it begins with a series of strong assumptions.
Proposed policies emerge logically from these assumptions.
A response to the appalling conditions of continental Europe
Elements can be found in US constitution
Theoretical Assumptions
Human Behavior (Micro)
Individuals are rationally self-interested:
Human Behavior (Micro)
Individuals are rationally self-interested:
Free Will
- There are no external influences on behavior
- Therefore, people are responsible for their behavior
Human Behavior (Micro)
Individuals are rationally self-interested:
Free Will
- There are no external influences on behavior
- Therefore, people are responsible for their behavior
Hedonism
- People seek pleasure
- People avoid pain
Human Behavior (Micro)
Individuals are rationally self-interested:
Free Will
- There are no external influences on behavior
- Therefore, people are responsible for their behavior
Hedonism
- People seek pleasure
- People avoid pain
Rationality
- People evaluate the consequences of all potential actions
- They choose the result with highest pleasure and least pain
Human Behavior (Micro)
Individuals are rationally self-interested:
Free Will
- There are no external influences on behavior
- Therefore, people are responsible for their behavior
Hedonism
- People seek pleasure
- People avoid pain
Rationality
- People evaluate the consequences of all potential actions
- They choose the result with highest pleasure and least pain
Individuals know what is best for them and act accordingly.
Utilitarianism (Macro)
Bentham: "it is the greatest happiness of the greatest number that is the measure of right and wrong."
Assumptions of rationality lead to utilitarian philosophy.
Key idea: The morality of an act can be determined solely by the pleasure and plain produced by it. That which produces pain is evil.
Judge people and government only by consequences of action.
Utilitarianism (Macro)
Bentham: "it is the greatest happiness of the greatest number that is the measure of right and wrong."
If individuals know best how to satisfy their needs and wants...
Assumptions of rationality lead to utilitarian philosophy.
Key idea: The morality of an act can be determined solely by the pleasure and plain produced by it. That which produces pain is evil.
Judge people and government only by consequences of action.
What is the implication for policy?
Utilitarianism (Macro)
Bentham: "it is the greatest happiness of the greatest number that is the measure of right and wrong."
If individuals know best how to satisfy their needs and wants...
... to maximize the utility of all, we should avoid restricting them.
Assumptions of rationality lead to utilitarian philosophy.
Key idea: The morality of an act can be determined solely by the pleasure and plain produced by it. That which produces pain is evil.
Judge people and government only by consequences of action.
What is the implication for policy?
What is the problem with this?
Utilitarianism (Macro)
Bentham: "it is the greatest happiness of the greatest number that is the measure of right and wrong."
If individuals know best how to satisfy their needs and wants...
... to maximize the utility of all, we should avoid restricting them.
This breaks down if individuals maximize utility at the expense of others.
This necessitates a deal--a contract--between individuals and society
Assumptions of rationality lead to utilitarian philosophy.
Key idea: The morality of an act can be determined solely by the pleasure and plain produced by it. That which produces pain is evil.
Judge people and government only by consequences of action.
What is the implication for policy?
What is the problem with this?
What if different people derive different utility from the same (disposable) object?
Redistribution is a key element of later conceptions of utilitarianism--but people quite wary of government in this period.
Bentham and later John Stuart Mill built considerably on this logic--obvious flaws are likely to have been addressed (e.g. moral rules, tendencies vs certainties)
Dostoevsky's Brothers Karamazov--is it right to sacrifice a child for the happiness of all
Social Contract
Consensus: Protect individual rights and property rights
- Maximize individual utility
Allow people to maximize their utility but protect their rights
Social Contract
Consensus: Protect individual rights and property rights
- Maximize individual utility
The Contract: Exchange freedom to harm for protection of own rights
- Punishment is only justified by social contract.
- Montesquieu: "every punishment which does not arise from absolute necessity is tyrannical"
Allow people to maximize their utility but protect their rights
Social Contract
Consensus: Protect individual rights and property rights
- Maximize individual utility
The Contract: Exchange freedom to harm for protection of own rights
- Punishment is only justified by social contract.
- Montesquieu: "every punishment which does not arise from absolute necessity is tyrannical"
No basis to restrict behavior which does not infringe on others' wellbeing.
- Beccaria: Legalize suicide; abolish death penalty
- Bentham: Legalize homosexual sex; grant women's suffrage
Allow people to maximize their utility but protect their rights
All behavior is utility maximizing--including perceived harm to self!
It gets fuzzy when insanity enters the mix--this is irrationality
Also gets fuzzy when definitions of harm are widened
John Stuart Mill's response: We cannot accept offense or disagreement as forms of harm, or there is no end to what can be legally proscribed.
Principles of Justice
Punishment
Curtail severity
- Severe punishments reduce utility needlessly
Punishment
Curtail severity
- Severe punishments reduce utility needlessly
Proportional severity
- Crimes against property punished by fines
- Imprisonment only when the crime deprives others of freedom
Punishment should be in proportion to the crime
Issues with this?
What about fining those who cannot pay--debtors prisons.
How do you determine what is proportional?
Punishment
Curtail severity
- Severe punishments reduce utility needlessly
Proportional severity
- Crimes against property punished by fines
- Imprisonment only when the crime deprives others of freedom
Deterrence not reform as goal
- Just sufficiently severe to prevent crime
- Make world a better place, not exact vengeance
Punishment should be in proportion to the crime
Issues with this?
What about fining those who cannot pay--debtors prisons.
How do you determine what is proportional?
Issues with this?
How do we calibrate severity? How do we deal with unpunished crimes?
Punishment
Curtail severity
- Severe punishments reduce utility needlessly
Proportional severity
- Crimes against property punished by fines
- Imprisonment only when the crime deprives others of freedom
Deterrence not reform as goal
- Just sufficiently severe to prevent crime
- Make world a better place, not exact vengeance
Goal: Make crime the irrational choice.
Punishment should be in proportion to the crime
Issues with this?
What about fining those who cannot pay--debtors prisons.
How do you determine what is proportional?
Issues with this?
How do we calibrate severity? How do we deal with unpunished crimes?
By making just barely overwhelming the pleasures of crime with punishment, one can prevent crime.
Calibration is an eternal problem though. Particularly problematic if pleasure from an act differs for everyone. Bentham believed it was quantifiable--the felicific or hedonic calculus. But Betham was also a bit of a weird guy. At his request, his clothed skeleton and wax head are on display at University College, London.
Criminal Law
Terms of Social Contract
- Clear delineation of expectations
- Written in common language
Terms of social contract should be clear and know to all
No one should be ignorant of their social obligations
Criminal Law
Terms of Social Contract
- Clear delineation of expectations
- Written in common language
Minimization of Law
- "To prohibit an action unnecessarily increases rather than decreases crime." (Radzinowicz 9)
Terms of social contract should be clear and know to all
No one should be ignorant of their social obligations
It is unreasonable to have a criminal code which is arcane
Administration
No Ex-Post Facto Legislation
- Something cannot be made retroactively illegal
You cannot change a contract after it is signed
Administration
No Ex-Post Facto Legislation
- Something cannot be made retroactively illegal
Minimal Discretion
- Fully described laws and punishments
- Judges only determine if a law was broken
- Punishments uniform regardless of circumstances of offender
You cannot change a contract after it is signed
Judges cannot punish for uncodified behavior
All crimes have specific punishments attached to them
No mitigating circumstances
No difference between first and repeat offenders
Administration
No Ex-Post Facto Legislation
- Something cannot be made retroactively illegal
Minimal Discretion
- Fully described laws and punishments
- Judges only determine if a law was broken
- Punishments uniform regardless of circumstances of offender
Protection of Rights
- Notice of charges
- Guaranteed counsel
- Presumption of innocence
You cannot change a contract after it is signed
Judges cannot punish for uncodified behavior
All crimes have specific punishments attached to them
No mitigating circumstances
No difference between first and repeat offenders
Built largely off the English system
Large deviation from original presumption of guilt--an accusation was sufficient for torture.
Crime Prevention
Moral education
Individuals should desire and prefer higher pleasures
Crime Prevention
Moral education
Reward good behavior
Individuals should desire and prefer higher pleasures
Bolster this by rewarding seeking higher pleasures; increase the pleasure of conformity
Crime Prevention
Moral education
Reward good behavior
Punishment is last resort
- Certainty, not severity, critical element for prevention
Individuals should desire and prefer higher pleasures
Bolster this by rewarding seeking higher pleasures; increase the pleasure of conformity
If one will always be caught, undue severity isn't needed, and the calculus is clear
Crime Prevention
Moral education
Reward good behavior
Punishment is last resort
- Certainty, not severity, critical element for prevention
Little consideration for structural causes of crime
Individuals should desire and prefer higher pleasures
Bolster this by rewarding seeking higher pleasures; increase the pleasure of conformity
If one will always be caught, undue severity isn't needed, and the calculus is clear
A starving person stealing bread; Bentham says we can justify the first-order evil (theft) but not the second (deprivation of bread from owner).
Criticisms
Marxist Critique
Reforms achieve justice only in egalitarian society
Marxist Critique
Reforms achieve justice only in egalitarian society
Capitalist mode of production is unequal
- Bonger: Capitalism precipitates crime by creating unequal access to life necessities
- Capitalism creates selfish individualism by encouraging accumulation
- Most crime will disappear under equal distribution
Marxist Critique
Reforms achieve justice only in egalitarian society
Capitalist mode of production is unequal
- Bonger: Capitalism precipitates crime by creating unequal access to life necessities
- Capitalism creates selfish individualism by encouraging accumulation
- Most crime will disappear under equal distribution
Law is part of capitalist superstructure
- Protects and legitimizes system
- Serves the wealthy
- White collar crime not punished
- Poverty is criminalized
- Working is enforced
- Organization is legally suppressed
Consider that in the late 1800s through early 1900s labor strikes were put down by military or hired guns
Slavery persisted deep into the 1800s in the US--facilitated capitalist gains
Marxist Critique
Reforms achieve justice only in egalitarian society
Capitalist mode of production is unequal
- Bonger: Capitalism precipitates crime by creating unequal access to life necessities
- Capitalism creates selfish individualism by encouraging accumulation
- Most crime will disappear under equal distribution
Law is part of capitalist superstructure
- Protects and legitimizes system
- Serves the wealthy
- White collar crime not punished
- Poverty is criminalized
- Working is enforced
- Organization is legally suppressed
Should strive for equality!
Consider that in the late 1800s through early 1900s labor strikes were put down by military or hired guns
Slavery persisted deep into the 1800s in the US--facilitated capitalist gains
Feminist Critique
Patriarchy
- Government and law controlled by men
- Has lessened in US but inequities in wages, politics, family persist
Feminist Critique
Patriarchy
- Government and law controlled by men
- Has lessened in US but inequities in wages, politics, family persist
Law reproduces patriarchy
- Domestic violence is private affair, not treated seriously
- Common law ruled out spousal rape
- Law maintains status quo
- Equal rights amendment prohibited unequal treatment
- ... but was never ratified
- 25 state-level ERAs
- Race still has stricter protections than sex
Only ratified by 35 of needed 38
Idaho, Kentucky, Nebraska, Tennessee and South Dakota revoked their ratifications
Feminist Critique
Patriarchy
- Government and law controlled by men
- Has lessened in US but inequities in wages, politics, family persist
Law reproduces patriarchy
- Domestic violence is private affair, not treated seriously
- Common law ruled out spousal rape
- Law maintains status quo
- Equal rights amendment prohibited unequal treatment
- ... but was never ratified
- 25 state-level ERAs
- Race still has stricter protections than sex
Should strive for equality!
Only ratified by 35 of needed 38
Idaho, Kentucky, Nebraska, Tennessee and South Dakota revoked their ratifications
Critical Race Theory
Civil rights
- Suppressed overt discrimination
- Did not change historical legacy or social structure
- Institutional discrimination survives
For all talk of liberty and equality, slavery lasted 100 years longer in US than Europe
Critical Race Theory
Civil rights
- Suppressed overt discrimination
- Did not change historical legacy or social structure
- Institutional discrimination survives
Law reproduces status quo
- Hard to address institutional discrimination
- Some areas of law racially biased
- Agents of law enforce racial hierarchy
For all talk of liberty and equality, slavery lasted 100 years longer in US than Europe
Jim Crow appeared after slavery abolished
Many laws--such as zoning laws--are still tools for segregation and exclusion
Drug laws and stop and frisk mainly enforced on minorities
Critical Race Theory
Civil rights
- Suppressed overt discrimination
- Did not change historical legacy or social structure
- Institutional discrimination survives
Law reproduces status quo
- Hard to address institutional discrimination
- Some areas of law racially biased
- Agents of law enforce racial hierarchy
Should strive for equality!
For all talk of liberty and equality, slavery lasted 100 years longer in US than Europe
Jim Crow appeared after slavery abolished
Many laws--such as zoning laws--are still tools for segregation and exclusion
Drug laws and stop and frisk mainly enforced on minorities
Critical Summary
Main critical viewpoints share a logic:
Structural problems exist
- Source and form of problems differs
- e.g. capitalism; patriarchy; colonialism or white supremacy
Critical Summary
Main critical viewpoints share a logic:
Structural problems exist
- Source and form of problems differs
- e.g. capitalism; patriarchy; colonialism or white supremacy
Law protects existing structure
Critical Summary
Main critical viewpoints share a logic:
Structural problems exist
- Source and form of problems differs
- e.g. capitalism; patriarchy; colonialism or white supremacy
Law protects existing structure
Equality should be the goal
- Vision of equality is different under each critique
Critical Summary
Main critical viewpoints share a logic:
Structural problems exist
- Source and form of problems differs
- e.g. capitalism; patriarchy; colonialism or white supremacy
Law protects existing structure
Equality should be the goal
- Vision of equality is different under each critique
Equality can be achieved only through dismantling existing structure
Questions
Can start writing questions
For Next Time
Readings:
Kauzlarich, David, and David O. Friedrichs. 2005. "Definitions of Crime."
Hemmens, Craig. 2005. "Defenses to Criminal Liability: Justifications and Excuses"
Things to pay attention to:
Definitions of Crime
- These matter for how we study it, and what criminality means.
Departures from Classical School
- Context matters
- Crime may not be result of rational process
- External influences may exist