+ - 0:00:00
Notes for current slide
Notes for next slide

Classical Criminology

SOC371

Chuck Lanfear

Jan 6, 2021
Updated: Jan 6, 2021

1 / 22

Overview

  1. Historical Context

    • European Despotism
    • The Enlightenment
    • Beccaria
  2. Theoretical Assumptions

    • Rationality
    • Social Contract
  3. Principles of Justice

    • Punishment
    • Criminal Law
  4. Criticisms

2 / 22

Historical Context

3 / 22

18th Century Europe

A "successful despotism", characterized by:

  • Arbitrary power of aristocracy and church

  • Laws against criticism of state and religion.

4 / 22

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

4 / 22

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

4 / 22

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

4 / 22

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
5 / 22

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
5 / 22

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

5 / 22

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"
5 / 22

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.

6 / 22

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
6 / 22

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
6 / 22

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.

6 / 22

A response to the appalling conditions of continental Europe

Elements can be found in US constitution

Theoretical Assumptions

7 / 22

Human Behavior (Micro)

Individuals are rationally self-interested:

8 / 22

Human Behavior (Micro)

Individuals are rationally self-interested:

  • Free Will

    • There are no external influences on behavior
    • Therefore, people are responsible for their behavior
8 / 22

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
8 / 22

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
8 / 22

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.

8 / 22

Utilitarianism (Macro)

Bentham: "it is the greatest happiness of the greatest number that is the measure of right and wrong."

9 / 22

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...

9 / 22

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.

9 / 22

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

9 / 22

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
10 / 22

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"
10 / 22

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
10 / 22

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

11 / 22

Punishment

Curtail severity

  • Severe punishments reduce utility needlessly
12 / 22

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
12 / 22

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
12 / 22

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.

12 / 22

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
13 / 22

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)
13 / 22

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
14 / 22

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
14 / 22

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
14 / 22

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

15 / 22

Individuals should desire and prefer higher pleasures

Crime Prevention

Moral education

Reward good behavior

15 / 22

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
15 / 22

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

15 / 22

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

16 / 22

Marxist Critique

Reforms achieve justice only in egalitarian society

17 / 22

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
17 / 22

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
17 / 22

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!

17 / 22

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
18 / 22

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
18 / 22

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!

18 / 22

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
19 / 22

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
19 / 22

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!

19 / 22

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:

  1. Structural problems exist

    • Source and form of problems differs
    • e.g. capitalism; patriarchy; colonialism or white supremacy
20 / 22

Critical Summary

Main critical viewpoints share a logic:

  1. Structural problems exist

    • Source and form of problems differs
    • e.g. capitalism; patriarchy; colonialism or white supremacy
  2. Law protects existing structure

20 / 22

Critical Summary

Main critical viewpoints share a logic:

  1. Structural problems exist

    • Source and form of problems differs
    • e.g. capitalism; patriarchy; colonialism or white supremacy
  2. Law protects existing structure

  3. Equality should be the goal

    • Vision of equality is different under each critique
20 / 22

Critical Summary

Main critical viewpoints share a logic:

  1. Structural problems exist

    • Source and form of problems differs
    • e.g. capitalism; patriarchy; colonialism or white supremacy
  2. Law protects existing structure

  3. Equality should be the goal

    • Vision of equality is different under each critique
  4. Equality can be achieved only through dismantling existing structure

20 / 22

Questions

21 / 22

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:

  1. Definitions of Crime

    • These matter for how we study it, and what criminality means.
  2. Departures from Classical School

    • Context matters
    • Crime may not be result of rational process
    • External influences may exist
22 / 22

Overview

  1. Historical Context

    • European Despotism
    • The Enlightenment
    • Beccaria
  2. Theoretical Assumptions

    • Rationality
    • Social Contract
  3. Principles of Justice

    • Punishment
    • Criminal Law
  4. Criticisms

2 / 22
Paused

Help

Keyboard shortcuts

, , Pg Up, k Go to previous slide
, , Pg Dn, Space, j Go to next slide
Home Go to first slide
End Go to last slide
Number + Return Go to specific slide
b / m / f Toggle blackout / mirrored / fullscreen mode
c Clone slideshow
p Toggle presenter mode
t Restart the presentation timer
?, h Toggle this help
Esc Back to slideshow