Chapter 3: Classical, Neo-classical and Rational choice theories
Classical theory did not strive to explain why people commit crime it was a strategy for
administering justice according to rational principles
Based on assumptions about how people in the seventeenth century began to reject the idea that
people were born into social types (f.e. nobility, serfs, etc.) with different rights and privileges
people are individuals possessing equal rights
The Preclassical era
16th century:
- People were born into statuses of wealth and power, positions that they claimed as their
natural right
- The law was the will of the powerful
- Justice was based on exacting pain, humiliation and disgrace
- The middle classes benefited from economic and social advancement, which was at the
expense of farmers, laborers and the poor many of whom became beggars and thieves
- Growth in street crime
- Corruption in the CJS + the judicial system operated arbitrary and unpredictably
- Rising fear of crime additional and harsher penalties
Post renaissance Europe/ Middle of the 16 th century already stirrings of change:
- Had broken from the rigid feudal order and the ancient régime (birth determines his or her
place in life)
- New mercantile system of trade
- Humans were now seen as capable of making a difference in their lives and situations
through acts of will
- The ‘respectable’ or ‘deserving’ poor were seen as the responsibility of the more fortunate
were given pensions and might be employed in doing certain tasks, or were taught useful
occupations
- The ‘unrespectable’ of ‘undeserving’ poor were described as worthless were punished
with imprisonment and whipping and were trained for honest work (compulsory labor would
permanently cure begging and thievery where laws had failed)
17th century major transformation:
- Utilitarian philosophers recognize the gross injustices of the legal and political system of that
time
- Resolution legal and judicial reform (consistent with ideas about human rights and
individual freedom)
- People were reinvented as rational and reasoning being the ‘new person’
- Reformers began to recognize that not all who violated society’s norms should be subject to
harsh and arbitrary punishments
,The classical reaction
The philosophical leaders of the classical movement demanded ‘double security’:
- Protection against the threat of the dangerous classes, symbolized by the growing crime rates
- Protection against threats from above, the aristocracy that still held the reins of government
power and legal repression
The primary focus of utilitarian philosophers transforming the arbitrary criminal justice into a fair,
equal and humanitarian system (by aligning the law with both logical and rational principles, mostly
expressed by Cesare Becceria and Jeremy Bentham)
Cesare Becceria
With his friends, Becceria formed a group called the ‘Academy of Fists’ was dedicated to ‘waging
relentless war against economic disorder, bureaucratic petty tyranny, religious narrow-mindedness
and intellectual pedantry’
Published a small book on penology (‘On crimes and punishments’) drew together all the main
intellectual ideas of the era, providing a standard for change
These ideas together, forming a framework, were revolutionary
Ideas:
Becceria challenged the idea that humans are predestined to fill particular social statuses they are
born as free, equal and rational
People have:
- Natural rights (such as the right to own property)
- Natural qualities (such as the freedom to reason and the ability to choose actions that are in
their best interest)
The government was not the automatic right of the rich it was created through a ‘social contract’
Social contract = free, rational individuals sacrificed part of their freedom to the state to
maintain peace and security on behalf of the common good, the government uses this
power to protect individuals against those who would put their interests above others
These assumptions together led to the principle of ‘individual sovereignty’ individual rights have
priority over the interests of society or the state (especially important in the exercise of law,
lawmaking should be the exclusive domain of elected legislators who represent the people)
Becceria also altered the focus of what counts as crime:
- Rather than defining crimes as offences against the powerful, he saw them as wrongdoings
against fellow humans and thus against society itself
- Crimes offended society because they broke the social contract
,The law, the courts and judges have a responsibility to protect the innocent from conviction and to
convict the guilty, but to do so without regard to their status, wealth and power the only basis for
conviction was the facts of the case
Led to the principle of ‘the presumption of innocence’ (innocence until proven guilty)
designed to protect individual rights against excessive state power or corrupt officials
Becceria did not believe that the best way to reduce crime would be to increase laws on the severity
of punishment, because this would only create new crimes cause people to offend Laws and
punishments should be only as restrictive as necessary to just deter those who would break them by
calculating that it would not be in their interests to do so
Punishment should be proportionate to the harm caused
General deterrence should be replaced by specific deterrence:
- General deterrence the punishment of one individual to discourage others from
committing crime
- Specific deterrence encourages each individual to calculate the costs of committing the
crime
This is the principle of ‘just deserts’ convicted offenders deserve punishment that is
proportionate to the seriousness of the harm they caused
In order for deterrence to work, three things must occur:
- Certainty a high chance of apprehension and punishment
- Severity the level of punishment must be appropriate
- Celerity the more promptly and the more closely punishment follows upon the
commission of a crime, the more just and useful will it be
Jeremy Bentham
Expanded on Becceria by adding the notion of the ‘hedonistic calculus’ as an explanation of people’s
actions people act to increase positive results through their pursuit of pleasure and to reduce
negative outcomes though the avoidance of pain
Law’s purpose increasing the total happiness of the community by excluding mischief and
promoting pleasure and security
Certain crimes should not be subject to criminal law:
- Crimes without victims
- Consensual crimes
- Acts of self-defense
These crimes produce more good then evil
Laws should set specific punishments for specific crimes in order to motivate people to act one way
rather than another but because punishments themselves are mischief, they should only be
justified to exclude a greater evil
, Punishments should be scaled so that an offender rationally calculating whether to
commit a crime would choose the lesser offense
In contrast to Becceria:
- Bentham believed that, in the case of a repeat offender, it might be necessary to increase the
punishment to outweigh the profit from offenses likely to be committed
- Bentham also introduces the notion that different offenses require different types of
punishment
Bentham as well as Becceria rejected the death penalty because it brought more harm than good
Bentham’s Panopticon:
- The ultimate disciplinary prison
- ‘to control not only the freedom of movement of those confined, but their minds as well’
- Circular structure, so the guard in the center could see into each sell without being seen by
the prisoner prisoners would believe they were under constant surveillance
- Bentham believed this system should also extend to factories, hospitals and schools
Limitations of classical theory
- Assumption that people are equal
- How could a system designed to allow some people to create more wealth than others, and
therefore to become materially unequal, maintain that in law all persons were formally
equal?
- Why do some people commit more crimes than others, if they are all equally endowed with
reason?
Neoclassical revision
French code of 1791 (following the French revolution of 1789):
- First significant legislation based on classical concepts
- Treated all offenders equally
But the French soon recognized that pure classicism took no account of individual
differences
The French revised the code in 1819 recognition of age, mental condition and extenuating
circumstances
Despite these changes, the basic underlying assumptions that humans are rational,
calculating and hedonistic remained the cornerstone of criminal justice policy
Rise of scientific criminology led to neoclassicism and postclassicism Contemporary rational-
choice theory
The notion that scientific laws, the development of rational thought and empirical
research could help society progress to a better world
