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Chapter 5

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Carleton University
SOCI 2450
Jim Davies

CriminologyChapter 5The Classical ThinkersIntroductionThe Canadian Criminal Justice system plays a balancing act between upholding and protecting the rights of each individual Canadian and upholding and protecting the collective rights of Canadian society as a wholeMajor Principles of the Classical SchoolMost classical theories of crime causation make the following basic assumptionHuman beings are fundamentally rational and most human behaviour is the result of free will coupled with rational choicePain and pleasure are the two central determinants of human behaviourPunishment a necessary evil is sometimes required to deter law violators and to serve as an example to others who would also violate the lawRoot principles of right and wrong are inherent in the nature of things and cannot be deniedSociety exists to provide benefits to individuals that they would not receive in isolationWhen men and women band together for the protection offered by society they forfeit some of the benefits that accrue from living in isolationCertain key rights ofindividuals are inherent in the nature of things and governments that contravene those rights should be disbandedCrime disparages the quality of the bond that exists between individuals and society and is therefore an immoral form of behaviourForerunners of Classical ThoughtAll human societies from the simplest to the most advanced evidence their own widely held notions of right and wrongSociologists term such fundamental concepts of morality and propriety as mores and folkwaysThey describe the three basic forms of behavioural strictures imposed by social groups upon their membersMores and folkways govern behaviour in relatively small primitive societies whereas in large complex societies they are reinforced and formalized through written lawsMores consist of proscriptions covering potentially serious violations of a groups valuesFolkways on the other hand are simply timehonoured customs and although they carry the force of tradition their violation is less likely to threaten the survival of the social groupMores and folkways although they may be powerful determinants of behaviour are nonetheless informal because only laws have been codified into formal strictures wielded by institutions and created specifically for enforcement purposesActs that are mala in se are said to be fundamentally wrong regardless of the time or place in which they occurThose who argue for the existence of mala in se offences as a useful heuristic category usually point to some fundamental rule such as religious teachings to support their belief that some acts are inherently wrongMala prohibita offences are those acts that are said to be wrong for the simple reason that they are prohibitedThe status of such behaviours as mala prohibita is further supported by the fact that they are not necessarily crimes in every jurisdictionThe Demonic EraThe very presence of evil in the world has begged for interpretation and sage minds throughout human history have advanced many explanations for the evil conditions that individuals and social groups have at times been forced to endureSome forms of evil such as the Holocaust appear cosmically based whereas othersincluding personal victimization criminality and singular instances of devianceare the undeniable result of individual behaviourEarly Sources of the Criminal LawThe Code of HammurabiThe Code of Hammurabi is one of the first known bodies of law to surviveKing Hammurabi ruled the ancient city of Babylon from 1792 to 1750BC and created a legal code consisting of a set of strictures engraved on stone tabletsThe Hammurabi laws were originally intended to establish property and other rights and were crucial to the continued growth of Babylon as a significant commercial centreHammurabis laws spoke to issues of theft property ownership sexual relationships and interpersonal violencePrior to the code captured offenders often faced the most barbarous of punishments frequently at the hands of revengeseeking victims no matter how minor their transgressions had beenEarly Roman LawRoman customs law and language were forced upon the English population during the succeeding thee centuries under the Pax Romanaa peace imposed by the military might of RomeEarly Roman law derived from the Twelve Tables which were written circa 450BC The tables were a collection of basic rules regulating family religious and economic lifeThey appear to have been based on common and fair practices generally accepted among early tribes which existed prior to the establishment of the Roman Republic The best known legal period in Roman history occurred during the reign of Emperor Justinian I AD 527565Justinian undertook the laborious process of distilling Roman laws into a set of writings
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