TEXTBOOK Chapter 4:
- Jurisprudence: the law and the principles that govern court decisions
- By late 17 century, Catholicism and Protestantism were no longer sufficient to explain
everything that happened in the world.
- New technologies and revolutions began to challenge these theories
- A Deviant went from being someone in league with evil forces to an actual behaviour that
detracted from the overall happiness or well being of members of society
- Since deviance was a rational calculation, the way to reduce it was to increase certainty and
severity of punishment precisely to the point in which the potential deviant would be deterred
- Punishment matching the crime; deviants would question whether the risk of deviance was
worth the cruel punishments and conform to a better choice
Rational calculation in an Imperfect world: The Enlightenment
- Deviant was no longer someone possessed by devils, they were seen as a rational person who
made self-serving choices.
- 5 central tenets of the classical view were:
1) People are hedonistic. They seek pleasure (gain) and avoid pain (harm).
2) People have free will. They choose whether to commit offences or conform to rules
when solving their problems
3) Society represents a form of social contract, whereby each individual gives up some
hedonistic pleasure to partake in the greater good provided by social order
4) Punishment is justified, solutions for all kinds of crime is to make the punishments
sufficiently severe and predictable that the calculation is changed and conformity is
preferred over crime
5) Reform of the secular world is worthwhile and appropriate since the life goal is to
achieve a utilitarian goal “Greatest good for the greatest number”
The Classical Paradigm
Rational, hedonistic actor with free will Perception of opportunity
assessment of probable risk Decision to conform or offend
- The philosophes expressed anger over inconsistencies and abuses to social order
- Philisophes also developed a new vision of how society could be if it were based on rational
principles that would ensure the greatest happiness for the greatest number
- Greatest good is served when each of us give up some of our freedom to do as we please in
order to preserve safety and well-being of all
- Hobbes describes human beings in their natural state as being engaged in “a war of all against
all”, a war fuelled by their desires fir gain, safety and reputation. In such society there could be
no industry, agriculture, building, arts or letters because “the fruit thereof is uncertain”
- to escape this unpleasant condition, men make a social contact with one another to give up their freedom to the sovereign, whose sole obligation is to protect the people.
Without this contract, neither justice nor injustice exists.
- The leviathan (the state), a huge, artificial monster made for our protection establishes what is
right and wrong and punishes to protect the common good.
- Two main representatives of classical school are – Cesare Beccaria and Jeremy Bentham
Becarrias model of punishment:
1) All people are motivated by pain and pleasure. Crime is a reasonable behaviour and
represents neither the devil nor illness. To reduce crime, it’s necessary to make it less rational
by changing social conditions.
2) The basis of all social action must be the utilitarian concept, not salvation for single soul
3) Greatest happiness is ensured by the social contract whereby each individual gives up some
of their hedonistic pleasure for the benefit of the whole.
4) The social contract is supported when the laws are openly made, clearly written, widely
known and uniformly enforced.
5) Crime must be considered an injury to society. Punishment should be in proportion to the
seriousness of the crime. Execution is not justifiable since it cannot be reversed if an error is
later to be found.
6) Punishment is justified only on the grounds that it helps prevent further criminal conduct.
Bentham – the more serious the offence, the more time and money should be invested to make
sure the punishment is enough.
- neoclassical thinkers remodified the classical theory
- Classical school of thought maintained that all crimes were to be judged only in terms of their
harm to the social fabric and punished only according to the pain necessary to deter further
offences. Classical thought meant that each offence had the same penalty regardless of
circumstances. (man that kills out of anger opposed to man who kills in state of insanity)
- Neoclassicists introduced 3 new concepts:
1) Mitigating factors: In classical system, all assaults of particular degree of seriousness were
treated the same way; under neoclassical system, the judge could take into account, for example,
whether the attack was perpetrated by a vicious bully, by someone engaged in self-