GRIFFITH COLLEGE DUBLIN Assignment Cover Sheet

Transcription

GRIFFITH COLLEGE DUBLIN
Assignment Cover Sheet
Result Awarded: ____ % Late Penalty: ____ % Overall Result: 70 %
Student name:
Joanna Krasuska
Student number:
2823306
Course:
LLB(Hons) in Irish Law Stage/year: 2nd semester/ 2nd year
Subject:
Criminology
Study Mode:
Full time: _____
Lecturer Name:
Sarah Jane Judge
Assignment Title:
"Discuss and assess the criminological theories of classicalism and
positivism."
Part time: x
No. of pages:
Additional Information:
(e.g. number of piece submitted etc.)
1 piece submitted
Word Count: 2830
Date due:
7th of April 2014
Date submitted:
5th of April 2014
Academic Misconduct:
I understand that I will be subject to the penalties imposed for the breaches of academic
conduct as defined in the College’s Academic Misconduct Procedure (QA J4).
Signed: Joanna Krasuska
Date: 14-March-2014
LATE ASSIGNMENTS: Penalisation for late assignments is 5% per day. Any assignment
submitted after the designated hours on the submission day will be considered a late
assignment and will be penalised at 5%. It will therefore be 10% if the assignment is
handed in the day after the submission date. If assignments are more than 1 week late, they
are not accepted and will be recorded as not having been presented
1 | P a g e Bibliography
Primary Sources – Textbooks
1.
An Introduction to Criminological Theory, Roger Hopkins Burke, Willan Publishing, 3rd Edition.
2.
On Crime and Punishment, Cesare Beccaria, 1764, trans. H. Paolucci 1963
3.
Criminology: A complete introduction, Peter Joyce, Manchester Metropolitan University, 2012
4.
Crime and Criminology, White and Haines, 4th ed., Oxford: OUP, 2008
5.
Crime and Criminology, Robert White and Fiona Haines, Oxford, 3rd Edition
6.
Media and Crime, Yvonne Jewkes, SAGE Publishcation, Second Edition, at 12.
7.
Criminology, Chris Hale, Keith Hayward, Azrini Wahidin, Emma Wincup, Oxford, 2nd Edition,
8.
“Panopticon or the Inspection House”, Bentham
Secondary Sources – Articles and Websites
1.
http://www.criminology.com/resources/understanding-criminology-theories/ accessed on the 16th of
March 2014
2.
Article: Punishing Poverty and Personal Adversity, Paul O’Mahony (1997) 7(2) ICLJ 152
3.
Kant, I. (1998). Groundwork of the metaphysics of morals (M. Gregor, Ed. & Trans.). Cambridge, UK:
Cambridge University Press. (Original work published 1785)
4.
The Limits of the Criminal Sanction, by Herbert L. Packer, Roger B. Dworkin, Indiana University
Maurer School of Law, Volume 44, Issue 3, Article 7, 4-1-1969
5.
Hudson, B. (1987). Justice through punishment. London: Macmillan.
6.
Hudson, B. (1996). Understanding justice. Buckingham, UK: Open University Press.
7.
Barton, Alana. "Just Deserts Theory." Encyclopaedia of Prisons & Correctional Facilities. Ed.
Thousand Oaks, CA: SAGE, 2004. 504-07. SAGE Reference Online. Web. 1 Aug. 2012.
8.
The Origin of Species (1968, originally 1859), The Descent of Man (1871) and Expression of Emotion
in Man and Animals (1872), Charles Darwin
9.
System of Synthetic Philosophy (1862-96), Herbert Spencer
10. Discours sur L’esprit Positif (“Discourse on the Positive Spirit”), the Systeme de la Politique Positif
(“System of Positive Polity”) and the Catechism of Positive Religion, Auguste Comte.
11. The Criminal Man (L’uomo delinquente), Cesare Lombroso, 1876.
12. Brown & Hogg: 1912 – Study of the size of skull of 355 men in prison.
13. British Criminology Before 1935, David Garland, Edinburgh, The British Journal of Criminology 1988,
Volume 28, HeinOnline.
14. “Why should recession Cause Crime to Increase?”, Box “Recession, Crime & Punishment”, London:
MacMillan, 1987
15. Megatrends in Criminal Justice Theory, Dean J. Spader, HeinOnline – 13 Am. J. Crim. L. 157 19851986
16. Sanctions, Situations, and agency in control theories of crime, Michael R. Gottfredson, University of
California, USA, European Journal of Criminology, SAGE 15 Mar 2011
2 | P a g e Introduction
Criminology examines certain behaviours and acts with the purpose of determining whether
the action in question is regarded as criminal or not. Furthermore, criminology studies
reasoning behind crimes and the behaviours of individuals who commit wrongdoing and aims
to gain an appreciation as to why crime is committed and uses this knowledge to control or
rehabilitate the offender. The focus in criminological theories varies from one to the next.
The purpose of this article is to discuss the emergence of two criminological theories –
classicalism and positivism in the historical context and their influence on shaping up of the
modern criminology. Primarily the development and key features will be discussed, along
with major representatives of each philosophy and the impact each theory had on the social
development and legal thought. Subsequently comparison will be conducted in light of
practical application of each theory.1 Additionally, the historical context will be discussed,
including social, economic and intellectual changes which contributed to the formation of
social science and criminology as we know it at present. Finally the modern applications of
the discussed theories will be examined.
Classicalism
First recognised tradition of explaining the occurrence of crime and criminal behaviour –
classicalism – was based on the idea of rational actor. It is predominantly based on two
schools of ideas – social contract theories and utilitarianism, the essence of which can be
found in the work of Thomas Hobbes, John Locke and John-Jacques Rousseau.2 The
criminological theory based on those thoughts was developed in the eighteenth century,
mainly by Italian philosopher and politician – Cesare Beccaria, British philosopher, jurist and
social reformer – Jeremy Bentham and a philanthropist and English prison reformer – John
Howard. The classical school of thought gravitates towards the idea of every person as an
autonomous being, capable of making independent, reasonable and fully informed choices.
Therefore if such an individual, after weighing the consequences against the possible gain,
decides to carry out a wrongdoing, proportional penalties shall be imposed on such a person.
Deterring prospective felons by imposing punishments outweighing the benefits of a crime
derives from the theory of social contract.3 The key concept of social contract, strongly
1
http://www.criminology.com/resources/understanding-criminology-theories/ accessed on the 16th of March
2014
2
3
Thomas Hobbes (1588 – 1678)
3 | P a g e supported by Beccaria,4 meant that that people would relinquish certain rights in order for the
social order to be maintained. In effect, everyone is subject to the law as far as rights and
obligations are concerned.
“Laws are the conditions under which men, naturally independent, united themselves
in society.”5
The aim of classicalism was to systemise law in order to make it predictable and unlike
feudalism, fair and reasoned. In order to prevent crime, all individuals were obliged to obey
the social contract. This rational actor model had been primarily cultivated in the
philosophical tradition of utilitarianism by Jeremy Bentham and John Stuart Mill. In essence
it evaluated all actions, decision and choices through the prism of the contentment of those
affected by them and accepted them as reasonable if they promoted happiness. This
hedonistic approach was accepted as the basic motive behind a person’s actions and choices.6
Economic and political revolt, which was the historical background to the emergence of
classical philosophy, led to the onset of capitalism which greatly departured from the social
injustice and inequality of feudalism. New democratic principles of Enlightment were
introduced, recognising the supremacy of law and its equal application as well as ensuring
basic human rights for all citizens and the consistent application of law. The disintegration of
feudalism led to significant changes in the common law, namely rebellion against the
absolute power of monarchy. History shows it was not a peaceful process, as revolutions and
armed conflicts ensued. The ideas proposed by the eighteenth century classical philosophers
were based on an absolutely predictable criminal justice system. Despite the courts still
favoured feudalism, the reforms were to change that in favour of beaurocratic, systemic and
impersonal justice system.7
Accordingly to Beccaria, offenders were to be punished proportionally to the seriousness of
their crime to pay the debt to the society caused by such unlawful act.8 Torture and capital
punishment were considered barbaric and futile in the pursuit of justice.
“Every punishment which does not arise from absolute necessity, says the great
Montesquieu, is tyrannical. A proposition which may be made more general thus:
4
On Crime and Punishment, Cesare Beccaria, 1764, Introduction
6
7
Criminology: A complete introduction, Peter Joyce, Manchester Metropolitan University, 2012 8
Article: Punishing Poverty and Personal Adversity, Paul O’Mahony (1997) 7(2) ICLJ 152
5
4 | P a g e every act of authority of one man over another, for which there is not an absolute
necessity, is tyrannical. It is upon this then that the sovereign's right to punish crimes
is founded; that is, upon the necessity of defending the public liberty, entrusted to his
care, from the usurpation of individuals; and punishments are just in proportion, as
the liberty, preserved by the sovereign, is sacred and valuable.”9
The lack of consistency of the justice and punishment system was believed to encourage
crime and, as pointed out by Beccaria, the inevitability of punishment would deter
prospective felons more effectively than a mere possibility of more severe punishment
combined with the chance of impunity.10 This concept encouraged the proposal to reform the
criminal justice system, which aimed to entail forming professional police forces, reforming
the penal code and removing the death penalty and adopting more consistent approach to
sentencing. Beccaria proposed codification of law, which would prevent any possibility of
interpretation. Moreover the reform would include operations of prisons to include efforts to
rehabilitate incarcerated felons.
Jeremy Benthat followed the utilitarian curve of criminal behaviour based on pleasure-pain
principle and that all individuals were driven by free will and hedonism11 adopted by
Beccaria. His theory based on outbalancing pain with pleasure could be applied not only to
criminology but to all walks of life. Accordingly punishment should be escalated to such a
level as to dissuade potential wrongdoers. He also believed that people are capable of making
conscious choices before committing a crime and can ascertain advantages and disadvantages
of such actions.12
Although classical school aimed for more open and systemic legal system, promotion of
human rights of every individual and humanitarian approach to punishment, it presents a
number of complications. The problems of classical theory concentrates on cases where
individuals are not able or not in a position to make a choice but are rather bound by
circumstances or by another. The issue of fairness arises especially in regard to minors,
mentally incapacitated and individuals living in extreme poverty or in pathological social
background. Generalising that everybody can draw the line between consequences of
wrongdoing and prospective gains from a crime flies in the face of efficiency of legal system
9
On Crime and Punishment, Cesare Beccaria, 1764, chapter Of the Rights to Punish
On Crime and Punishment, Cesare Beccaria, 1764, trans. H. Paolucci 1963 11
12
Bentham, “Panopticon or the Inspection House”
10
5 | P a g e of a State putting at a disadvantage all those offenders who were in no position to make a
choice. Furthermore it is against the idea of proportionality of punishment to a crime.13 The
classical ignorance of evident differences between individuals could be found in the Penal
Code of 1791 of the post-revolutionary France, where all offenders, regardless of age, state of
mind and seriousness of crime committed were treated equally. Consequently, the system was
revised to reflect the existence of various degrees of culpability of individual wrongdoers and
as a result judges were allowed to vary sentences with that in mind. This departure resulted in
the creation of neo-classical school.14
The modern criminal law was influenced to great extent by Beccaria’s theory and had been
reflected in numerous discussions on crime. The notion of free will, as a drive behind all acts,
is incorporated into legal codes world-wide and has a strong impact on the common
perception of justice.15 It is clear in the concept of mens rea and differentiating degrees of
culpability. Also it is visible in sentencing tariff, which is designed in accordance to the
progression of seriousness of a crime.16 Further influences of classicalism can be found in
twentieth century theory of “just deserts”, based on the work of eighteenth century
philosopher Immanuel Kant.17 It also followed the classical school’s ideas in regard to
proportionality of crime to an offence as well as fair and impartial sentencing system.
Accordingly to von Hirsch, an offender must be punished upon proven guilty and the
sentence must be proportionate to the nature of the crime, the gravity and culpability of the
offender and finally shall not be lenient. Justice must be done and seen to be done as in the
traditional classical idea of due process. As noted by Packer,18 contemporary criminal justice
relies on the balance between due process and crime control, which is encapsulated in the
idea of innocent until proven guilty. The criticism of just deserts is alike the one of
classicalism19,20 in regard to overlooking mitigating circumstances like structural or
economic conditions.21 Therefore the aspiration for uniformity and proportionality needs to
give room for flexible approach to exceptional situations in both theories. Summarising, the
13
White and Haines, Crime and Criminology, 4th ed., (Oxford: OUP, 2008) chapters 2
15
16
17
Kant, I. (1998). Groundwork of the metaphysics of morals (M. Gregor, Ed. & Trans.). Cambridge, UK:
Cambridge University Press. (Original work published 1785)
18
The Limits of the Criminal Sanction, by Herbert L. Packer, Roger B. Dworkin, Indiana University Maurer
School of Law, Volume 44, Issue 3, Article 7, 4-1-1969
19
Hudson, B. (1987). Justice through punishment. London: Macmillan.
20
Hudson, B. (1996). Understanding justice. Buckingham, UK: Open University Press.
21
Barton, Alana. "Just Deserts Theory." Encyclopaedia of Prisons & Correctional Facilities. Ed. Thousand
Oaks, CA: SAGE, 2004. 504-07. SAGE Reference Online. Web. 1 Aug. 2012.
14
6 | P a g e classical rational actor model had been inhibited and replaced by the positivistic predestined
actor idea. However it has been revived and returned during the twentieth century in favour
of the crime control model of criminal justice.22
Positivism
Positivism derives from natural science23 and emerged in the nineteenth century, an era of
capitalistic expansion and industrial revolution. Agriculture was no longer the main source of
wealth and the capitalistic class gained the abilities to climb up the social ladder thanks to
accomplishments of social revolution and technological attainments. On the other hand,
influx of low paid labour into industrial sphere resulted in the creation of a new social classes
termed proletariat, which was experiencing very harsh life marked by poverty and child
labour. As far as social science is concerned, positivist claimed that through objective
observation of the society and extraction of deviant behaviours as in opposition to socially
accepted ones, they were able to determine and predict human conduct, including crime.
Crime studies in post-revolutionary France had shown increased of reoffending24 which
resulted in positivists rejecting the idea of rational thinking and attributed criminal
predispositions to abnormal intelligence, biological and psychological factors or otherwise
scientific reasoning.
The crucial notion of positivism was a belief that crime cannot be prevent as it is an intrinsic
component of an individual’s essence. The study of link between cause and effect resulted in
belief that free will does not influence criminality, but it is predetermined by biological,
psychological and sociological factors over which the offender has very little or no control.25
The pre-existing theological explanations for human behaviour were challenged primarily by
Charles Darwin26, Herbert Spencer27 and August Comte.28 Positivist wanted to treat every
offender as an individual and focus on the person rather than the crime and as a result be able
to determine what factors were influencing such an individual and eliminate those
successfully. The way to establish who was predisposed to be an offender the positivists
22
An Introduction to Criminological Theory, Roger Hopkins Burke, Willan Publishing, 3rd Edition
24
25
26
The Origin of Species (1968, originally 1859), The Descent of Man (1871) and Expression of Emotion in Man
and Animals (1872), Charles Darwin
27
System of Synthetic Philosophy (1862-96), Herbert Spencer
28
Discours sur L’esprit Positif (“Discourse on the Positive Spirit”), the Systeme de la Politique Positif (“System
of Positive Polity”) and the Catechism of Positive Religion, Auguste Comte.
23
7 | P a g e relied on science of recorded crime statistics and acceptable behaviour defined by general
moral consensus. The aim of sentencing was rehabilitation, and not punishment as prescribed
by classicalism. What also distinguished positivistic approach to sentencing were
indeterminate sentences.29
Biological Positivism
This idea has been developed mainly by biological criminologists of the Italian School –
Cesare Lombroso, Enrico Ferri and Raffaele Garofalo.30 Except for the scuola positiva there
were others searching for the “criminal type” – “social ecology” scholars such as AndreMichel Guerry from France and Adolphe Quetelet from Belgium, both focusing on scientific
explanation of crime.31 Although the theory was very simplistic at first it refined
progressively. Cesare Lombroso, basing on evolutionary theories and observation of bodies
of executed criminals, claimed that people who involve in crime were born with those
tendencies and can be distinguished from non-criminals through certain somatic features.32
Initially he believed that, due to underdevelopments manifested through bodily imperfections,
termed atavistic features, like protruding teeth or extra toes, criminals were inferior human
beings, which were a result of a step-back in evolution.33 Successively, still upholding his
primary conclusions, Lombroso developed this theory distinguishing various types of
criminals into biological categories, like born criminals, insane criminals, occasional
criminals finally criminals of passion.34 His concept manifested itself in future notions like
phrenology – the study of the shape of the human head, which was utilised in conducting
studies on different types of wrongdoers.35
29
31
Criminology, Chris Hale, Keith Hayward, Azrini Wahidin, Emma Wincup, Oxford, 2nd Edition, p. 77-78
32
The Criminal Man (L’uomo delinquente), Cesare Lombroso, 1876.
33
34
35
Brown & Hogg: 1912 – Study of the size of skull of 355 men in prison. This study worked from the premise
that the larger the skull, the bigger the brain, the more intelligent you are (cattle thieves had the smallest brain,
embezzlers and forgers had the largest brains); Goring: 1913 – Conducted a study through conversations with
criminals and deduced from these conversations that criminals were less intelligent; Sheldon: 1940 –
Approached the categorisation of criminals from the shape of the body. He argued that there were essentially
three types of bodies and three personas which went with these body types: (1) monomorphic – muscular, broad,
strong; persona: brave, energetic, confident; (2) endomorphic – round, soft, relatively weak; persona: friendly,
social; (3) ectomorph – thin, weak, frail; introverted, quiet, intelligent
30
8 | P a g e Female offenders were not given much consideration and the only were primarily associated
with prostitution and abortion. Sexual nature was believed to be the reason for females to
involve in crime, while poverty was totally disregarded.36
Although Lombroso’s theory was unsystemised and lacked core idea, his work had significan
influence on the shape of modern criminology. Primarily, his departure from the classicalism
turned criminological studies from philosophical theorising to science. Furthermore, he
pioneered in examining clinical and historical records. And finally, his multimodal approach
to explanation of crime, incorporating hereditary, social, cultural and economic factors,
showed that there are many reasons why individuals involve in wrongdoing.37
Positivists failed to clarify their position to non-violent crimes. The assumption that
criminality results from biological abnormalities, has not been proven as the studies
conducted on incarcerated individuals was not certain as to the origins of impairments. Also,
the study did not extent to individuals who would have similar abnormalities but did not
involve in crime. Furthermore the hypothesis that there is general moral consensus as to the
definition of “deviant behaviour” could be challenged as well as the one-dimensional theory
that criminality is caused only by one factor – biological or psychological. Another question
arises in regard to treatment of a criminal as some crimes, like rape or paedophilia, would
require drastic and invasive measures in breach of human rights. More issues as to the breach
of rights arise in the early diagnosis and treatment concept, which comes down to quasi
scientific guessing exercise which aims at individuals that have not involved in any crime.38
Modern positivists consider biological factors only in combination with environmental ones.
Some aspect of positivistic theory are implemented in concepts that emphasize psychological
factors in crime – namely forensic psychology, pre-sentence reporting, treating detainees with
psychological problems, criminal profiling and similar.39
Psychological Positivism
The psychological positivists focused on the mind as a source of criminal behaviour, which in
the pure form foresees that offenders characterise with specific patterns of reasoning
regardless of social background or other physical factors. One of the approaches was based
36
An Introduction to Criminological Theory, Roger Hopkins Burke, Willan Publishing, 3rd Edition 37
An Introduction to Criminological Theory, Roger Hopkins Burke, Willan Publishing, 3rd Edition 38
Crime and Criminology, Robert White and Fiona Haines, Oxford, 3rd Edition 39
Crime and Criminology, Robert White and Fiona Haines, Oxford, 3rd Edition 9 | P a g e on psychoanalytical theory and analysis of the conscious and unconscious mind.40 Another
perspective focused on studies of temperament such as aggression and passivity. Also, some
approaches focused on psychiatric issues rooted in past experiences. Sigmund Freud is the
pioneer in psychodynamic explanation of crime and criminal behaviour. Freud suggested that
traumatic experiences from childhood or even fantasies of such could give rise to
involvement in criminal acts.41 His theories are deeply rooted in neurology, as his primary
field of study. Psychological positivism was developed in England by medical practitioners
employed within the criminal justice system who had unlimited contact with inmates and
came to conclusion as to discrepancies between them and that numerous offenders were
unlikely to possess the required mens rea to be held accountable for the offences. They
categorised criminological behaviour as pathology and concluded there should be a panacea
for that. This idea had been reflected in treating World War I soldiers, who were physically,
incapacitate
or
displayed
various
symptoms
of
post-traumatic
stress
disorder.42
Contemporarily biological positivism is cultivated in forensic psychiatry and forensic
psychology and both are used in criminal justice system in rehabilitation of offenders and
criminal profiling.43
There are a number of concepts concentrating on the characteristics of wrongdoers; one of
them is control theory which remains a prominent explanation for crime and deliquency.44 It
derives from psychodynamic, the study of behaviour in relation to motivation and drives,
relying heavily on emotions and the notion a person’s make up and responses are a
combination of biological and sociological factors. According to Freud people are impulsive
and have to learn self-control to be able to operate in a society.45 The theory was developed
by Travis Hirschi, who combined the classical idea that humans have natural tendencies to
commit crime. Therefore society has to teach every individual to refrain from criminal
behaviour. Hirschi outline four elements of social bond, which are ties with primary agents of
socialization, like parents or teachers, investment in conventional behaviour and setting
40
42
British Criminology Before 1935, David Garland, Edinburgh, The British Journal of Criminology 1988,
Volume 28, HeinOnline.
43
44
Sanctions, Situations, and agency in control theories of crime, Michael R. Gottfredson, University of
California, USA, European Journal of Criminology, SAGE 15 Mar 2011
45
“Why should recession Cause Crime to Increase?”, Box “Recession, Crime & Punishment”, London:
MacMillan, 1987
41
10 | P a g e future goals incompatible with delinquency, involvement in social events like sport and
finally, conveying moral validity as social norms.46
Modern form of Classicalism and Positivism
Positivism went in the direction of utilitarian sentencing, which supported the idea of
indeterminacy unitil 1970’s. The strong positivistic current, with all advantages and
drawbacks, left classicalism in a side lane until recent veer back toward classical values,
which has been described as neoclassicalism. Similarly, the revised and upgraded version of
positivism has been described with a new term of neopositivism. In result neoclassicalism
and neopositivism are moderated versions of the clashing theories of classicalism and
positivism. As it is clearly impossible to adopt unaltered version of one of the theories, the
criminal justice system tends to amalgamate features of both into one complementing
system.47 Although both schools claim more efficient deterrence, equally in specific and
general application, their values differ profoundly on the majority of other matters.
46
47
Criminology, Chris Hale, Keith Hayward, Azrini Wahidin, Emma Wincup, Oxford, 2nd Edition, p. 95-96
Megatrends in Criminal Justice Theory, Dean J. Spader, HeinOnline – 13 Am. J. Crim. L. 157 1985-1986
11 | P a g e

GRIFFITH COLLEGE DUBLIN Assignment Cover Sheet

Transcription

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