Cesare Beccaria (1738–1794)
Cesare Bonesana, Marchese di Beccaria (known simply as Cesare Beccaria), was born in Milan, Italy, in 1738 to an aristo- cratic family with little remaining political power. He was schooled by Jesuits, receiving a degree in law from the Univer- sity of Pavia in 1758. Shortly thereafter, he joined a society of intellectuals formed by his friends Alessandro and Pietro Verri, who were advocates of social reform. After studying with and listening to the discussions of the group, Beccaria began to
read the works of French Enlightenment scholars. It was this literature that ultimately served as the foundation for his On Crimes and Punishments in 1764. After publication of his famous treatise, the Austrian government gave him a faculty position at the Palatine School in Milan. He spent two years in that role and subsequently occupied a series of patronage- based public offices, never writing another work for public con- sumption. He died in 1794.
Chapter 2 • The Classical School 15
authority of the Church and emphasized an order to things that was separate from religious rev- elation. Morals, ethics, and responsibilities became major topics of discussion. The application of science to the physical world had begun to reveal “truths,” and people were certain that the same effort brought to bear on moral and political questions would yield similar fruit.
The major explanation for human behavior was hedonism. Under this theory, people are assumed to automatically attempt to maximize pleasure and minimize pain. According to Ben- tham (1789, p. 29), the value of any pleasure or pain would be determined by its intensity, dura- tion, and certainty. This theory of behavior became the basis for the concept of deterrence. Bentham’s elaboration on deterrence is the essence of today’s rational perspectives.
One of the major new philosophical viewpoints rested on so-called natural human rights and justified the existence of government as a social contract between the state and its citizens (see, for example, the work of John Locke). This justification came close to reversing the previous political belief that people existed to serve the government and, instead, made service to the people the rationale for government. Under this social con- tract, a person surrendered to the authority of the state only the amount of freedom neces- sary to ensure protection of the rights of other citizens. Although it was not really new, the idea of a social contract between people and their government served the needs of the new middle class. Added to this was the utilitarian perspective. Even before Beccaria wrote (in the 1720s), Scottish philosopher Francis Hutcheson discussed what he referred to as a “moral sense” that compelled men to behave so as to create the greatest good for the great- est number (see DiCristina, 2012). Thus, the humanitarian ideas of the Classical period set the stage for new political and legal structures based on the common person, not the elites and the powerful.
Growing specialization in trade and industry required more services such as roads, ports, municipal services, and policing, and the government made an ideal provider of those services. The increasing secularization of society, in turn, fit in well with both the social contract concep- tion of a rational human and the rising middle class. Secularism immediately suggested reforms in institutions, which was all to the benefit of the new classes.
Finally, an emphasis on human dignity, stemming from the Enlightenment, was character- istic of the period. A humanistic current of thought, chiefly from England and France, aroused the young intellectuals of the day. Those works that expressly influenced Beccaria were Montes- quieu’s The Spirit of the Laws (1748) and the various pamphlets and letters of Voltaire (Maestro, 1942, pp. 17–18). In addition to Beccaria and Montesquieu, such writers and thinkers as Hume, Montaigne, Rousseau, Helvetius, Diderot, and Condorcet were the new champions of the com- mon people and produced eloquent writings glorifying people rather than the Church or state. A concern with improving social conditions accompanied this growth of interest in humanity, mak- ing possible the rise of the social sciences.
the PerSPectIve of the School
The Classical School, then, generally gave us a humanistic conception of how law and criminal justice systems should be constructed. It did not give rise to theories of criminal behavior; instead, the prevailing assumption of hedonism was used as a theory of human nature and was incorporated into the rationale for building legal structures. Crime and law were its essence, not
Jeremy Bentham (1748–1832)
Jeremy Bentham was born in London, England, in 1748. He attended Westminster School until enrolling at Queen’s College, Oxford, at the age of 12 and received his degree at the age of 15. Thereafter, Bentham studied law at Lincoln’s Inn but ulti- mately decided not to pursue law as a career. As a well-to-do and self-made scholar, Bentham spent most of his time in Westmin- ster, where he wrote prolifically in philosophy, economics, and law. He was said to have produced 10–20 pages of manuscript
each day. He was the earliest proponent of utilitarianism and was considered somewhat of a political radical for his critiques of legal and common law traditions. He suggested a broad range of reforms such as animal welfare, prison management through architecture (the Panopticon), and the decriminalization of homosexuality. Upon his death, per his instructions, his body was embalmed and fitted with a wax head likeness and then placed in a glass-fronted case on display at University College, London.
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criminal behavior (although they assumed rationality, hedonism, and deterrence). Law was to protect the rights of both society and individual, and its chief purpose was to deter criminal behavior. Therefore, classical law emphasized moral responsibility and the duty of citizens to consider fully the consequences of behavior before they acted. This thinking, of course, required a conception of humans as possessing free will and a rational nature. Indeed, rationality was critical to the classical position. Any individual should be able to weigh the pleasure to be gained from an illegal behavior against the punishment (pain) decreed by law and subsequently to decide against the act.
The role of punishment, according to Bentham, in itself was evil and should be used only to exclude some greater evil (1789, p. 170). Thus, the only justification for punishment was deterrence. The Classical School saw two forms of deterrence: a specific or individual form and a general or societal form. Specific deterrence applied to the individual who committed an offense. The idea was to apply just enough pain to offset the amount of pleasure gained from the offense. In fact, many suggested that punishments should be restricted to the same degree of pain as the degree of pleasure gained from the offense. They saw punishment in excess of this calcu- lated amount as unnecessary, for it put the state in the position of despot. General deterrence, on the other hand, was to apply to other potential offenders by showing them that a punished indi- vidual would not gain from his or her offense. Through watching, or otherwise knowing about an individual receiving punishment for committing an offense, others would learn that such behav- ior is not profitable and thus would not commit similar acts.
These theorists saw three components to deterrence: celerity, certainty, and severity. Celerity is the speed with which a punishment is applied. Theoretically, at least, the closer in time a punishment is to the act, the better the result. Therefore, if an undesirable act is punished immediately, the individual would most likely be deterred. Certainty is the concept of making a punishment sure to happen whenever an undesirable act is committed. Classical theorists believed if every undesirable act were sure to be punished, then any rational person would immediately see the lack of profit in such actions. Severity is the amount of pain to be inflicted on those who do harmful acts. The greater the potential severity, the more a rational person should avoid doing harm. Thus, our system of criminal punishments is set up to match severity with the harm of an offense. Finally, Beccaria and Bentham clearly saw deterrence as most likely to occur when celerity and certainty were maximized (swift and certain punishment). They viewed severity, on the other hand, as less important and only something to be used when celerity and certainty were diminished. There was also danger in relying on severity—punish- ments that are too severe are likely to make the citizenry view government as despotic and become unruly. The current U.S. system of government has, primarily because of a concern for the citizenry’s civil rights, made severity important because of the justice system’s lengthy pro- cess and a seeming uncertainty of being arrested. Politicians also have bought into severity as a way of appearing to be tough on crime and have managed to upset original formulas relating severity of crime and incremental punishment.
According to the thought of the Classical School, the criminal justice system should respect the rights of all people. Since government drew its authority from the social contract, all individuals were equal before the law. This meant the operation of criminal justice had to be aboveboard, due process of law had to be followed, evidence had to be obtained from facts, and equality had to be maintained. They proposed that all punishments be specified by law, thus limiting judicial discretion. Scholars such as Beccaria suspected judges of following personal whim and not the law when determining guilt. He wanted the discretion of judges limited and the process of conviction and sentencing fully spelled out by law. In response to those who argued that exactly the same treatment of all offenders would result in inequities, Beccaria said some inequities would certainly result, but not the overwhelming inequity of the old system (Beccaria, 1764, p. 16).
Like Beccaria, Bentham argued against great judicial discretion but saw the need to allow for some forms of decreased rationality among offenders. Punishments, he added, should not be inflicted if they are groundless, ineffective (i.e., administered to a person who was drunk or insane at the time of the offense), unprofitable, or needless. Bentham, a writer trained in the law, sought the systematic organization of legal procedures. He divided offenses into classes and types, distinguishing between private and public wrongs, crimes against person and against prop- erty, and violations of trust. In addition, he created what he called the felicific calculus, an elabo-
Chapter 2 • The Classical School 17
rate schedule of punishments designed to take into account a combination of pleasure, pain, and mitigating circumstances. This latter endeavor reflected one of the major problems of the Classi- cal School: how to calculate the exact degree of punishment needed to offset the gain from criminal behavior. Bentham also recognized the problems that occur when lesser offenses are punished more severely than serious offenses. Indeed, these problems continue to plague us today, as judges and legislatures seek to find appropriate sentences for various crimes. The major difference seems to be that today’s legislators have little of Bentham’s understanding of how deterrence works and escalate sentences for lesser offenses at whim (or in response to special interest groups of voters).
Although Beccaria was not opposed to the use of corporal punishment, particularly for those convicted of violent personal crimes, he specifically decried the use of torture in interroga- tion to elicit confessions (Beirne, 2006). He supported time limits on case preparation for both the defense and the prosecution. This is another example of these theorists’ conviction that swift- ness of punishment, not its severity, is the strength of its deterrent value. Beccaria was also opposed to the imprisonment of those not yet convicted of crimes. Languishing in the filthy, disease-ridden prisons, many of the accused died even before being tried, a situation repugnant to the humanitarian as well as to the rational thinker of the time. The writings of Beccaria and John Howard, who toured prisons and jails and described their conditions, inspired sweeping reforms of prison conditions and incarceration practices.1
Finally, members of the Classical School were generally opposed to capital punishment. Beccaria argued that no citizen has the right to take his or her own life and, therefore, citizens could not give this right to the state under the social contract. Moreover, if the state can take a life, where is the profit in allowing the state to govern for us? Capital punishment was, as a result, not part of the state’s base of authority. Using a more pragmatic approach to capital punishment, Bentham pointed out that the death penalty might tend to make members of a jury exercise leni- ency out of humane motives, therefore subverting the law. Using this same line of reasoning, he also thought witnesses might perjure themselves out of the same humane motives. In short, by being humane, jurors in capital cases could spread a message that it is acceptable to ignore the law. Thus, he thought capital punishment was simply not worth the potential havoc it could cre- ate for the justice system and law.
The impact of the Classical School may be seen in the results of the French and American revolutions (Newman & Marongiu, 2009). Both embraced the equality of people, the right to life and liberty, fairness in the administration of justice, and restrictions on the actions of the state. Criminal law in the United States is largely classical, with its strong emphasis on individual responsibility for actions and on due process of law. In our contemporary criminal justice sys- tem, not until the sentencing stage is there a move away from the classical emphasis, with some sentences designed to treat the offender. Even here the current trend is toward a more punitive form of sentencing.
claSSIfIcatIon of the School
Since the Classical School was, in reality, a movement designed to reform society, it was both conflict-oriented and structural. The conflict classification derives from the fact that philoso- phers and scholars of this era saw human nature as needing to be restricted and controlled. They believed that people were basically self-interested and, without restraint, would act in ways that conflict with the interests of others. Proponents of these versions of human nature simply could not accept the idea of individuals naturally being in a state of consensus or agreement with each other. The promotion of social contract forms of government classical theorists felt societies could most humanely control their citizens and their governments. In addition, the majority of their ideas were at odds with existing political and legal structures, and their reforms were aimed
1 There is some contention about the importance of Beccaria’s work. Philip Jenkins (1984) argues that it was Beccaria’s “conservative” bent that provided the support for the essay. Similarly, Graeme Newman and Pietro Marongiu (1990, 2009) hold that Beccaria’s work is vastly overrated today. They suggest that all the ideas in his essay were present in oth- ers’ works, from which Beccaria liberally borrowed. Piers Beirne (1991, 1993, 1994, 2006) also argues there was no real Classical School and that Beccaria has been continuously misinterpreted by scholars. Other critics have noted that the very processes and behaviors Beccaria objected to were being reformed both before and as he wrote.
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at existing social arrangements. The new philosophy of the common people was in conflict with religious and economic systems, the old governmental structure, and forms of knowledge based on religious revelation.
We classify the Classical School as predominantly structural because it emphasizes the effect of societal institutions on people in general. The theorists’ main concern focused on the way governments make law and how law affects the rights of citizens. The fact that the Classical School was interested in the legislation of criminal law and in the criminal justice system, rather than in criminal behavior, is characteristic of a fully structural approach. Indeed, since most of the criminological theories of the period were political theories, the Classical School was pre- dominantly macrotheoretical in its orientation.
There is also a processual and microtheoretical side to the Classical School. Some argue that the Classical School should be categorized as processual because of its emphasis on the rational, and hedonistic, behavior of individuals. Indeed, the justification for punishment and the construction of criminal law were based on showing a rational person that there would be no profit in transgressing on the rights of others. The entire classical legal structure is founded on the concept of a rational person and responsibility for one’s own actions. Clearly, the Clas- sical School had something to say about the process of committing crime and why crime takes place. It is also true, however, that every theoretical position begins with (often unstated) assumptions about human nature. Those assumptions form a foundation for theories but do not constitute the essence of a theory. Therefore, we believe that the rational pursuit of pleasure is best seen as an assumption rather than the real focus of classical theory. Those who focus on the writings of Jeremy Bentham are more likely to see a microtheoretical, and processual, focus to the school.
The Classical School is characterized by (1) an emphasis on free will choices and human rationality, (2) a view of behavior as hedonistic, (3) a focus on morality and responsibility, (4) a concern with political structure and the way in which govern- ment deals with its citizens, and (5) a concern for the basic rights of all people. These generic ideas and concerns were applied to criminal justice to produce concepts such as deter- rence, civil rights, and due process of law; but it is the general characteristics, not the specific ones of criminal justice, that contain the essence of classical thought.