The Classical and Neo-Classical Schools

Before the classical school, the dominant explanation of crime in Europe was spiritual, and it had been for a thousand years. Its most careful statement came from St. Thomas Aquinas (1225–1274), who argued that there was a God-given natural law revealed by observing, through the eyes of faith, people's natural tendency to do good rather than evil. Criminal law reflected that natural law, so a man who broke the criminal law also sinned; and crime harmed not only the victim but the criminal himself, because it damaged his essential humanness.

That explanation had a practical consequence, and the practical consequence is the real subject of Beccaria's book. Because crime was identified with sin, the state claimed to be acting in the place of God when it punished, and the punishments were accordingly theatrical and horrible. Two years before Beccaria published, Jean Calas was sentenced to be taken in a cart to the Cathedral, to kneel at the main door holding a torch of yellow wax weighing two pounds and ask pardon of God, of the King and of justice; then to have his arms, legs, thighs and loins broken and crushed on a scaffold; and finally to be placed on a wheel, face to the sky, alive and in pain, to serve as an example and to instil terror in the wicked. The religious symbolism is the point: in punishing crime the state was taking the part of God.

Against that, the social contract writers substituted a naturalistic account. Hobbes argued that people naturally pursue their own interests without caring whether they hurt anyone else, producing a war of each against all; that people are rational enough to see this serves nobody; and that they therefore agree to give up selfish behaviour so long as everyone else does the same, granting the state the right to use force to maintain the contract. Locke, Montesquieu, Voltaire and Rousseau built variants. By the middle of the 1700s these ideas were accepted by intellectuals, but not by the politically powerful groups that ruled Europe, who still saw crime as the work of the devil.

Beccaria was a protest writer. He was an indifferent student with some interest in mathematics; he joined Allessandro Verri, an official of the Milan prison, and his brother Pietro Verri, an economist, in a group meeting to discuss literary and philosophical topics; and in March 1763 he was given an assignment to write an essay on penology, a subject about which he knew nothing. With the Verri brothers' help the essay was finished in January 1764.

The behavioural premise is free-will rationalistic hedonism: people are responsible and predominantly rational decision-makers who can be controlled by fear of punishment, because if the pain obtained from punishment exceeds the pleasure obtained from crime, they will choose not to commit crime.

From that premise Beccaria drew a programme, and you should be able to state it as a numbered list:

1. The legislature should both define crimes and define the specific punishment for each specific crime — against the practice of the time, where legislatures passed very general laws and left implementation to the vast discretion of judges.
2. The judge's role is solely to determine guilt. Once guilt is found, the judge should follow the strict letter of the law in determining punishment and should have no discretion whatsoever. Nothing, Beccaria said, is more dangerous than the popular axiom that it is necessary to consult the spirit of the laws.
3. Seriousness is measured solely by the harm inflicted on society — not by the intent of the offender, since with the best intentions men sometimes do the greatest injury to society and, intending the worst, sometimes do the greatest good.
4. Punishment must be proportionate, and its purpose is deterrence. The obstacles that deter should be stronger in proportion as the acts are contrary to the public good and as the inducements to commit them are stronger.
5. Punishment is unjust when its severity exceeds what deterrence requires. For punishment to attain its end the evil it inflicts has only to exceed the advantage derivable from the crime; all beyond this is superfluous and for that reason tyrannical.
6. Excessive severity increases crime. Men are driven to commit additional crimes to avoid the punishment for a single one, and the countries most notorious for severity of penalties have always been those in which the bloodiest and most inhumane deeds were committed.
7. Punishment must be prompt — more just, because the criminal is spared the cruel torments of uncertainty; and more useful, because the shorter the interval, the stronger the association in the mind between the two ideas, crime and punishment.
8. Punishment must be certain. The certainty of a moderate punishment always makes a stronger impression than the fear of a more terrible one combined with the hope of impunity.
9. Prevention beats punishment. It is better to prevent crimes than to punish them; that is the ultimate end of every good legislation. Make the laws clear and simple; unite the whole force of the nation in their defence; let the laws favour men rather than classes of men; and let men fear the laws and nothing else, for fear of the laws is salutary, but one man's fear of another is fatal and fertile for crimes.

He added that laws should be published so that the public may know them; that torture and secret accusations should be abolished; that capital punishment should be abolished and replaced by imprisonment; that jails should be more humane; and that the law should not distinguish between rich and poor. His own summary is the best single sentence in the subject: punishment must be essentially public, prompt, necessary, the least possible in the circumstances, proportionate to the crimes, and dictated by the laws.

The Roman Catholic Church condemned the book in 1766 and placed it on the Index of Forbidden Books, where it stayed for over two hundred years. That did not matter, because the American Revolution of 1776 and the French Revolution of 1789 followed soon after publication, both guided by social contract ideas; to those revolutionaries Beccaria's book was the latest and best thinking on crime, and they built their new criminal justice systems on it. From America and France the ideas spread to the rest of the industrialised world.

The French Code of 1791 applied his principles literally: the judge was only an instrument for applying the law, and the law prescribed an exact penalty for every crime and every degree of crime.

The Code failed in exactly the way its logic predicted. Because only the act and not the intent was considered, the Code treated everyone alike: first offenders like repeaters, minors like adults, the insane like the sane. The set, impersonal features of the Code became the point of attack for a new school of reformers who complained of the injustice of a rigorous code and championed individualization and discriminating judgment to fit individual circumstances. The Code was revised so that judges could consider age, mental condition and extenuating circumstances.

Those practical revisions are the neo-classical school. It is important to see, and examiners test it, that the neo-classical school represented no break with classical doctrine about human nature. The doctrine remained that people possess free will, are guided by reason and self-interest, and can therefore be controlled by fear of punishment. What changed was the admission that circumstances differ, and that a machine which cannot see the difference is not doing justice.

Earlier writers had already opened that door. As early as the 1760s and 1770s Henry Dagge and Mannasseh Dawes argued that the law's notion of a free-willed offender was often enough a fiction in the face of real social and psychological circumstances limiting choice, and used the new materialist psychologies to explain how causal processes could be acknowledged without entirely destroying belief in free will.

• The positivists' charge. Members of the scuola positiva disparaged the classical school as unscientific, relying on speculative reasoning rather than observed facts. That charge is not how the classicists saw themselves: it was the classicists who first established the claim that crime and its control could be studied in a neutral, scientific manner.
• The statistical refutation. The first annual national crime statistics were published in France in 1827, about sixty years after the book. They showed regularity — crime rates constant from year to year, with constant regional differences — which embarrassed a pure free-will account that predicted random fluctuation. Worse, they showed crime rising and recidivism rising: people who had received the prompt, proportionate punishments of the new Code were committing more new offences, not fewer. That was the empirical failure that produced positivism.
• The narrowness charge. Roshier's defence concedes the point while blunting it: nothing in Beccaria's intellectual position precluded a consideration of the socio-economic context of crime, and it is an oddity that he seemed to see the criminal justice system as the only aspect of the environment influencing individual decisions about whether crime is worthwhile.
• The genealogical charge. Garland argues that the writings of Beccaria, Bentham and the others did not constitute a criminology at all. They belong to criminology's genealogy — they supplied the institutional concerns, the psychological questions and the stock of propositions — but they were not a science of the criminal.

Three uses, and each earns marks:

1. As the origin of the modern criminal justice system. Beccaria's ideas have become the basis for almost all modern criminal justice systems. Anything you say about legality, proportionality, certainty, promptness or the abolition of torture traces here. 2. As the still-standing model of the offender. In its neo-classical form, with minor modifications, this is the major model of human behaviour held to by agencies of social control in all advanced industrial societies. Deterrent sentencing, the tariff, and the ordinary criminal trial all assume the reasoning offender. 3. As one half of a pair. The classical school and the positive school are able to be viewed as opposites precisely because they share a common institutional context and each entails a programme for directing the modern field of criminal justice. But do not overstate the opposition: on Beirne's view the proper place for Beccaria's theory in the history of criminology lies at the very beginning of the tradition to which it is commonly opposed, namely positivist criminology. Positivist and classical criminology are really part of the same enterprise, both seeking to identify the factors that influence the incidence of criminal behaviour; the basic controversy between them is empirical rather than theoretical — which factors matter more. </content>