WDW300 February 9 2012.docx

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19 Apr 2012
Lecture 5 - February 9, 2012
15:12 PM
Beccaria and Bentham - From the Enlightenment to Modern Penology
History of criminal justice policy and criminal justice theory
-separation of powers/European ideology of legal positivism
-witch trials
-death penalty and public executions
-judicial torture
-from Beccaria; European legal positivism, problems of precedent and appeal
Broader Questions of history and theory
A range of possible approaches
-ideas - historical policy changes
-use of ideas purely opportunistic window-dressing (Marx) - look at underlying power relationships to
understand how public policy is actually made
-diffusion, interaction - complex relation between texts and policy
Beccaria 1738-1794- On Crimes and Punishments
Social Contract
-state of nature - similar or different to other theorists so far?
-join state of nature to get out of unsafe state of war through the establishment of laws to protect their
-social contract is tied to the authority to punish
-general will; authority of punishment comes from the smallest portion possible of liberty given up, and
represents the will, an aggregate of private wills
-mutual obligation; it is in everybody's interest that the contracts useful to the greatest number should
be observed
-just and unjust punishments
-a crime is against the social contract and gives more advantage of liberty to one individual; individual
liberty and general liberty
The Laws
-role of the sovereign - represents society and 'is the depository of the current will of all citizens'
-give laws to the judges
-the role of the judge - not to interpret the law, but to judge whether it has been broken
Codification - laws must be available and clear because otherwise people must depend on others to
explain the laws to them, undermines system authority
-printed law makes the entre public the depository of the sacred laws
Seperation of Powers
-there needs to be a third party to pass judgement on whether a member has violated the social
contract. Otherwise, the nation would be divided into two parties; one, represented by the sovereign,
which alleges the violation of the contract and the other, the party of the accused, which denies it
Principles of Punishment
Purpose - to deter other men by fear from committing a similar crime
Proportionality - there should be only enough punishment to deter law-breaking
-three things that should not enter the calculation of proportionality
-sin; cannot bring God into equation, social status of the offender,
Promptness - speed of detention and trial is important because
-it is useful to punish the guilty quickly to associate the crime with the punishment
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