Historical Context
Theoretical Assumptions
Principles of Justice
Criticisms
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.
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.
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
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.
A philosophical and scientific response to the social context of continental Europe.
Grounding: Reason and empiricism
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.
A philosophical and scientific response to the social context of continental Europe.
Grounding: Reason and empiricism
Values: Liberty, progress, and religious tolerance
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.
A philosophical and scientific response to the social context of continental Europe.
Grounding: Reason and empiricism
Values: Liberty, progress, and religious tolerance
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.
A philosophical and scientific response to the social context of continental Europe.
Grounding: Reason and empiricism
Values: Liberty, progress, and religious tolerance
Goals: Reform system to protect individual rights
Results: Undermined authority of monarchy and church--French revolution
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.
On Crimes and Punishments (1764) was a reformist manifesto and indictment of European justice system.
A response to the appalling conditions of continental Europe
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.
A response to the appalling conditions of continental Europe
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.
In turn, widely influential:
A response to the appalling conditions of continental Europe
Elements can be found in US constitution
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.
In turn, widely influential:
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
Individuals are rationally self-interested:
Individuals are rationally self-interested:
Free Will
Individuals are rationally self-interested:
Free Will
Hedonism
Individuals are rationally self-interested:
Free Will
Hedonism
Rationality
Individuals are rationally self-interested:
Free Will
Hedonism
Rationality
Individuals know what is best for them and act accordingly.
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.
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?
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?
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
Consensus: Protect individual rights and property rights
Allow people to maximize their utility but protect their rights
Consensus: Protect individual rights and property rights
The Contract: Exchange freedom to harm for protection of own rights
Allow people to maximize their utility but protect their rights
Consensus: Protect individual rights and property rights
The Contract: Exchange freedom to harm for protection of own rights
No basis to restrict behavior which does not infringe on others' wellbeing.
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.
Curtail severity
Curtail severity
Proportional severity
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?
Curtail severity
Proportional severity
Deterrence not reform as goal
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?
Curtail severity
Proportional severity
Deterrence not reform as goal
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.
Terms of Social Contract
Terms of social contract should be clear and know to all
No one should be ignorant of their social obligations
Terms of Social Contract
Minimization of Law
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
No Ex-Post Facto Legislation
You cannot change a contract after it is signed
No Ex-Post Facto Legislation
Minimal Discretion
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
No Ex-Post Facto Legislation
Minimal Discretion
Protection of Rights
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.
Moral education
Individuals should desire and prefer higher pleasures
Moral education
Reward good behavior
Individuals should desire and prefer higher pleasures
Bolster this by rewarding seeking higher pleasures; increase the pleasure of conformity
Moral education
Reward good behavior
Punishment is last resort
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
Moral education
Reward good behavior
Punishment is last resort
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).
Reforms achieve justice only in egalitarian society
Reforms achieve justice only in egalitarian society
Capitalist mode of production is unequal
Reforms achieve justice only in egalitarian society
Capitalist mode of production is unequal
Law is part of capitalist superstructure
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
Reforms achieve justice only in egalitarian society
Capitalist mode of production is unequal
Law is part of capitalist superstructure
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
Patriarchy
Patriarchy
Law reproduces patriarchy
Only ratified by 35 of needed 38
Idaho, Kentucky, Nebraska, Tennessee and South Dakota revoked their ratifications
Patriarchy
Law reproduces patriarchy
Should strive for equality!
Only ratified by 35 of needed 38
Idaho, Kentucky, Nebraska, Tennessee and South Dakota revoked their ratifications
Civil rights
For all talk of liberty and equality, slavery lasted 100 years longer in US than Europe
Civil rights
Law reproduces status quo
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
Civil rights
Law reproduces status quo
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
Main critical viewpoints share a logic:
Structural problems exist
Main critical viewpoints share a logic:
Structural problems exist
Law protects existing structure
Main critical viewpoints share a logic:
Structural problems exist
Law protects existing structure
Equality should be the goal
Main critical viewpoints share a logic:
Structural problems exist
Law protects existing structure
Equality should be the goal
Equality can be achieved only through dismantling existing structure
Can start writing questions
Kauzlarich, David, and David O. Friedrichs. 2005. "Definitions of Crime."
Hemmens, Craig. 2005. "Defenses to Criminal Liability: Justifications and Excuses"
Definitions of Crime
Departures from Classical School
Historical Context
Theoretical Assumptions
Principles of Justice
Criticisms
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