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Chapter 4


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University of Toronto Mississauga
Nicole Myers

Readings Ch. 4 Classical Theories and Deviance and Their Influence on Modern Jurisprudence Rational Calculation In an Imperfect World: The Enlightenment, 1680-1800  The deviant was a rational person who made self-serving choices. Interest in deviance turned from the outrages of heresy and witchcraft to the disruptions of crime. The five central tenets of the classical view were as follows: 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 and meeting their needs 3. Society represents a form of social contract whereby each individual gives up some of his or her right to hedonistic pleasure to partake of the greater good provided by social order. 4. Punishment is justified as a means of transforming the hedonistic calculation so that the performance of duty is more than following the criminal path. In classical utilitarian terms, the solution for all kinds of crime is to make the punishments sufficiently sever 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 chief goal in life is not to achieve salvation but rather to reach the utilitarian goal, which is the greatest good for the greatest number. Armageddon is not imminent: abuses, injustice, and oppression are the chief evils to be fought against, not the armies of the antichrist.  With crime as the focus, other forms of deviance tended to be neglected, but the paradigm of the classical school can readily be extended to include the explanation of noncriminal forms of deviance.  The classical view became dominant only after several centuries of transition, during which the ideas of religion, rationality and science overlapped and competed with one another in a violent disruptive way.  The Enlightenment was rooted in the rediscovery of early Greek and Roman prescientific writing (which had been preserved in monastic libraries) and in the work of the emerging geological, astronomical and medical sciences which were being aided by new technology –the telescope and microscope –and by improvements in transportation and communication. Social Justice in the 18 thCentury  The practice of the courts was demonstrably irrational, corrupt, unjust, cruel, harsh and arbitrary.  Holy terror was the law of the times  Most forms of misbehavior went totally unpunished, so that life for most people was unpredictable and hard. Although few became entangled in the justice systems of government or Church, those who did were treated as terrible examples for everyone else.  Those accused were imprisoned until tried, and investigation of the case often required that they be put to judicial investigative not punitive torture.  In typical cases, judges answered to no higher authority apart from the rich and powerful whom they feared to antagonize.  Disastrous wars meant increases in taxation and the periodic return of disaffected soldiers hardened by war and unsuited to peacetime employment.  The crowd sometimes rescued prisoners, and the executioner (especially one who bungled the job) was sometimes killed. A legal system as disorderly as this one could not last long. The Philosophe and the Classical School  Some of the philosophes maintained that the greatest good is served when each of us give up some of our freedom to do as we please in order to preserve the safety and well being of all –a kind of social contract that each member of society enters into as a condition of membership.  Any law that goes beyond what is necessary to uphold the social order is oppressive and wrong  One of these social contract writers, Thomas Hobbes argued in his best known work, Leviathan, that moral rules should have a purely secular basis. Hobbes describes human beings in their natural state as being engaged in a war of all against all, a war fuelled by their desires for gain, safety, and reputation.  In such a society, there could be no industry or agriculture, no importation or building, no arts or letters because the fruit thereof is uncertain.  The leviathan (state), a huge artificial monster made for our protection establishes what is right and wrong and punishes to protect the common good. Cesare Beccaria  Cesare Beccaria was an indifferent student who often objected to the accepted notions taught in his day. He graduated with a degree in law from the University of Padua at he age of 20, was a professor of political economy for a brief period, and later enjoyed a reputation as a brilliant mathematician who found new applications for quantitative methods in social and political affairs.  His famous essay “Dei delitti e delle pene” on crimes and punishments was first published in 1765.  Beccaria was deeply disturbed by what he saw and heard in these prisons. Although his essay did not express new ideas but rather those who time had come, it did so with such eloquent logic that it was widely read and became a focal point for action against barbaric practices in criminal law and procedure in Europe, England, and the colonial stellements.  Beccaria did not put his name on the work at first, fearing repression by the inquisition. Jeremy Bentham  Bentham spend most of his life obsessed with a vision of social reform based on utilitarianism, the principle that all things should be organized in such a way as to ensure the maximum happiness for the greatest number.  He planned to be the founder of the sect of philosophers called utilitarian’s, and, as part of this, arranged to have his body, when he died, made into an “auto-icon” or representation of itself, so that it could serve as a representation of the founder of the sect.  Bentham emphasized hedonism (the pleasure principle) and his works discuss the issue of effective punishment more than they do Beccaria’s ideas about social contract and an accountable, predictable judicial system.  The premise that “nature has placed mankind under the governance of two sovereign masters, pain and pleasure.” From there he developed the idea of a felicific calculus whereby actions are evaluated based on their tendency to produce either pain or pleasure.  There were six elements to be considered for each person involved in an interaction (intensity, duration, certainty, propinquity or remoteness, “fecundity,” the likeliness of its being followed by more sensations of the same kind, and “purity” the likelihood of its not being followed by more sensations of the opposite kind.  According to Bentham’s Principles of Morals and Legislation the law in particular needed to be totally reformed to meet utilitarian standards. The utility of any law could be measured by the extent to which it promoted the pleasure, good, and happiness of the people.  For utilitarians, such as Bentham, laws and punishments that were unnecessary were themselves evil.  Like Beccaria, Bentham argued that deviance could be controlled not by changing deviants but by changing the rules, not by terrorizing people but by showing them that conformity was the best way to find happiness.  His felicific calculus would assign definite values to pleasure and pain  If a thief gained X units of pleasure from a crime, it would be up to the court to assign X+1 unitos of pain  For each offence it was appropriate to adjust the punishment – The value of the punishment should not be less than what is sufficient to outweigh that of the profit gained by the offence – The more serious the offence, the more time and money should be invested to make sure that it is punished enough – The punishment fore the various offences should be set in such a way that, if a person decided to commit an offence, he ore she would be induced to choose the less serious one – If an offence has several aspects, the punishment should be set to discourage all parts of it, not just the most serious part. – The punishment should never be more than what is necessary to outweigh the value of the offence to the offender. Since punishment involves pain and is, therefore, intrinsically evil, it should be used only to exclude some greater evil. – The punishment should be generally consistent across similar offences but should take into account the differences between offenders that influence their sensitivity. Neoclassical Theory  Classical ideas were q
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