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US-China Law Review, August 2020, Vol. 17, No. 8, 348- doi:10.17265/1548-6605/2020.08.
Pure-Classical and Neo-Classical Schools of Criminology:
Applicability Into the Present Context of Criminal
Law in Sri Lanka
Kusal Amarasinghe University of Colombo, Colombo, Sri Lanka
There are several theories on the study in criminology. Among those theories, the Pure-Classical Theory of Criminology and the Neo-Classical Theory of Criminology are two major schools in criminological studies. These two schools of criminology try to explain the crime causation and the methods adopted to control them in their rationalization. This study focuses to discuss the historical evolution of the pure-classical and neo-classical approaches and their applicability on criminology into the modern criminal justice system with a special review on selected general defences of substantial criminal law in Sri Lanka.
Keywords: Classical School of Criminology, criminal justice, Neo-Classical School of Criminology
Introduction ï
Criminology focuses on studying why people commit crimes and how they behave in such situations. By understanding why a person commits a crime, one can develop ways to control crime or rehabilitate the criminal. To study this scenario, there are many theories in criminology. Theories are intellectual structures designed to help explain things within given domains of interest. According to Charles R. Tittle (2016), there are seven approaches in theories. These seven approaches include: (1) theoretical science; (2) problem solving; (3) analysis; (4) descriptive approaches; (5) critical work; (6) nihilistic thinking; and (7) amelioration. Theories, however, are intellectual accounts with no necessary connection to the real world they purport to explain. The Pure-Classical School of Criminology was developed in the 17th century, where classical thinking emerged in response to the cruel forms of punishment that dominated at the time. Neo-classical criminology can be defined, simply, as a school of thought that assumes criminal behaviour as situationally dynamic and individually-determined. Neo-Classical Theory assumes that aggravating and mitigating circumstances should be taken into account for purpose of sentencing an offender (Tibbetts & Hemmens, 2014).
Kusal Amarasinghe, LL.B (Hons.), LL.M (Reading), lecturer (Probationary), Department of Public and International Law, Faculty of Law, University of Colombo, Colombo, Sri Lanka.
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Pure-Classical Theory of Criminology
History and Pioneer Theorists The Classical Theory of Criminology was developed as a result of critique on Demonological Theory of Criminology. Demonology is one of the earliest theories in criminology. In ancient times, people believed that evil spirits or demons entered the human soul and made people commit sins. This was the earliest explanation given regarding crime and criminal behaviour. In the 17th century, criminologists and jurists were started to argue about the rationality of this idealistic Demonological Theory. Classical criminology emerged at a time when the naturalistic approach of the social contract theorists was challenging the previously dominant spiritualist approach to explain crime and criminal behaviour. Thomas Hobbes (1588-1678) emphasized that it is the exercise of human âfree willâ that is the fundamental basis of a legitimate social contract (Burke, 2009). According to the Hobbes, compliance can be enforced by the fear of punishment, but only if entry into the contract and the promise to comply with it has been freely willed, given and subsequently broken (Burke, 2009). Hobbes claimed that in a âstate of natureâ the people would be âthe barbariansâ and life would tend to be ânasty, brutish and shortâ. Thus, he proposed that people should freely subject themselves to the power of an absolute ruler or institution which, as the result of a political-social contract would be legitimately empowered to enforce the contracts that subjects make between themselves (Hobbes, 1651). John Locke (1632-1704) had a different conception of âthe state of natureâ and argued that there is a natural law that constitutes and protects essential rights of life, liberty and property. Locke disagreed with Hobbesâ view that people should surrender themselves to the absolute rule of a ruler and argued that people gain their natural rights to life and liberty from the Christian God and hold them effectively in trust (Burke, 2009). Jean-Jacques Rousseau (1712-1778) emphasized that human beings had evolved from an animal-like state of nature. Rousseau developed the concept of the âgeneral willâ, observing that in addition to individual self-interest, citizens have a collective interest in the well-being of the community. He traced the foundations of the law and political society to this idea of the âgeneral willâ a citizen body, acting as a whole, and freely choosing to adopt laws that will apply equally to all citizens (Rousseau, 1762; Burke, 2009). Cesare Beccaria (1738-1794), an Italian philosopher, was one of the key theorists of the Classical Theory of Criminology. Beccaria considered that criminals owe a âdebtâ to society and proposed that punishments should be fixed strictly in proportion to the seriousness of the crime (Beccaria, 1963). He was a very intimate supporter of âSocial Contractâ Theory with its emphasis on the notion that individuals can only be legitimately bound to society if they have given their consent to the societal arrangements. Beccaria considered torture as a useless method of the criminal investigation, as well as being barbaric. Moreover, the death penalty (capital punishment) was considered to be unnecessary with a life sentence of hard labour preferable, both as a punishment and deterrent (Burke, 2009). Beccariaâs theory of criminal behaviour is based on the concepts of free will and hedonism. He argued that punishments and all offences must be written into the law also not be open to the interpretation, or the discretion, of judges. The seriousness of the crime should be judged not by the intentions of the offender but by the harm that it does to society. Beccaria suggested that the punishment must be administered in proportion to the crime that has been committed and should be set on a scale. According to Beccaria, the law
scope and range of punishment. Before, criminal justice systems implemented punishment in the form of pain. However, as time progressed, the criminal justice systems have moved away from corporal punishments.
The limitations of Classical Theory of Criminology The classical theorists had deliberately and completely ignored differences between individuals (Burke, 2009). This is the most significant criticism on the Classical Theory of Criminology. Every perpetrator does not have the same mentality. According to Classical Theory, offenders and recidivists were treated the same way and solely based on the particular act that had been committed. Also, children and juvenile, the feeble-minded and the insane were all treated as if they were fully rational and competent. Classical criminologists ignore the acceptance of the different mentalities of a crime. Based on the theory of rationality, they skip the recklessness, negligence, unsound mind, and different status of a guilty mind. According to the Classical Theory of Criminology, the rational intention would be the sole mental element of a crime. Also, Classical Theory does not consider a variety of criminal liability. Under the classical perspective, judges should only impose punishment established by the law to preserve consistency and the certainty of punishment and the punishments should be decided by the legislature, not by the courts. Accordingly, the judiciary interpretations are on accepted by the classical theorists. The application of the Classical Theory prevents judgesâ discretionary power and confines judicial activism (Tibbetts & Hemmens, 2014). According to the Classical Theory of Criminology, the severity of the punishment should be determined by the severity of the crime. But the same crime or offence could be done by different offenders who have different mentalities for different reasons. However, classical theorists avoid the mitigatory circumstances of punishment. An important element of the Classical Theory of Criminology is the doctrine that people will weigh the possible pleasure from committing the crime versus the possible pain from punishment. Pleasure and pain can only be determined on a subjective basis. There is no general measurement to define the rationale spectrum of pleasure and pain. These limitations and criticisms of the Pure-Classical Theory contributed to the emergence of the Neo-Classical Theory of Criminology.
Neo-Classical Theory of Criminology
The main significant difference between the Neo-Classical School and Pure-Classical School is that the neo-classical takes into account contextual circumstances of the individual or situation that allow for increases or decreases the severity of punishment (Tibbetts & Hemmens, 2014). The Neo-Classical Theory admits sociological, psychological, and other mitigating circumstances as modifying conditions to classical doctrine (Tibbetts & Hemmens, 2014). This theory views the crime as influenced by criminal opportunities to commit crimes. The Neo-Classical School of Criminology originally developed in the 18th century. Gabriel Tarde (1843-1904), René Garraud (1849-1930), and Henri Joly (1839-1925) modified the rigorous doctrines of Pure-Classical Theory by revising the doctrine of free will (Burke, 2009; Tibbetts & Hemmens, 2014). In this modified form of the rational actor model, ordinary sane adults were still considered fully responsible for their actions and all equally capable of either criminal or non-criminal behaviour. It was nevertheless now recognized
that children and, in some circumstances, the elderly were less capable of exercising free choice and they were less responsible for their actions. Moreover, the insane and feeble-minded persons might be even less responsible (Burke, 2009). The Neo-Classical School approached the study of criminology by introducing more scientific methods. The neo-classical criminologists believed that certain external factors or mental disorders deprived a personâs free will. The main argument of the neo-classical theoristsâ rests on the basis that while those who have control over their free will should be held responsible for their willed acts or omissions, and those individuals who have not such ability due to some external or internal factors should not be treated in the same manner. The Neo-Classical School developed the argument that âcrime is a result of many conditions that have ultimately influence on the perpetrators to commit itâ. 3 Therefore, for the first time of academic history in criminology, the neo-classical theorists put the foundation to the critical and scientific study on crime and criminal responsibility.
Key Principles of Neo-Classical School of Criminology Theory of Rational Choice is one of a major theory developed in Neo-Criminology School. The argument by rational choice theorists is not that individuals are purely rational in their decision-making but rather that they consider the costs and benefits (Tibbetts & Hemmens, 2014). Rational choice theorists admit that such behaviour is only partly rational but that most offenders know quite well about their act or omission. Many external factors may constrain rational choices, such as social factors, political factors, economic factors, and cultural factors. Neo-classical theorists argue for a crime specific approach to crime. According to them, the offenderâs characteristics are combining with offence type in shaping offender choices (Tibbetts & Hemmens, 2014). The Neo-classicists retained the central notion of free will as the basis of the rational choice, but with the modification and certain innovative circumstances to the exercise of free will. The Neo-Classical School of Criminology suggests the concept of âjust desertsâ as a deterrence methodology. The just deserts concept assumes that individuals must pay for their wrongdoing and that they deserve it (Tibbetts & Hemmens, 2014). âJust desertsâ philosophy is based on the notion of justice must be both done and seen to be done. This approach is closely linked with the traditional Classical School notion of âdue processâ. Under the Neo-Classical Theory, punishment should be proportional not only to the severity of the crime but also to the psychological and physical condition of the offender. Neo-classist for the first time recognized the need for variations in sentencing by judges depending on sex, age, mental conditions, of the offender. They asserted that certain categories of offenders, such as minors, idiots, insane, or incompetent had to be treated leniently in matters of punishment irrespective of similarity of their criminal acts because these persons were incapable of appreciating the difference between right and wrong (Thilakarathna, 2019). According to the MâNaghten Rule which is applicable in the English criminal law, a defendant is not guilty because of insanity if, at the time of the alleged criminal act, the defendant was so deranged that he did not know the nature or quality of his actions. This rule is mainly based on the light of the Neo-Classical Theory. The Neo-Classical School also endorses the idea of the social contract, due process rights, and rational being who are deterred by the certainty, swiftness and severity of punishment.
(^3) Neo-Classical Crime TheoryâTheoretical criminology (crime-study.blogspot.com), accessed 10 May 2020.
Automatism also considered as a state of mind under the penal law in Sri Lanka. In the case of Gamini v. Attorney General , the Court of Appeal stated that âthe plea of automatism ... is, in effect, a plea that the act in question was involuntaryâ. 11 The Classical School advocates that the severity of the punishment should be similar to the severity of the offence. The Penal Code and the Criminal Procedure Code of Sri Lanka adhere to this noting in recognizing a relationship between the gravity of the crime and the amount of the punishment. Article 13(5)^12 of the Constitution of Sri Lanka provides that every person shall be presumed innocent until proven guilty. Therefore, any suspect or an accused would define as an innocence person until his or her guiltiness is proven before the court. However, the Free Will Theory advanced by the Classical School can be seen embodied in the Penal Code of the country which makes it a rule that unless the contrary is proven, a man is supposed to be in control of his faculties and therefore is action rationally knowing the consequences of the act or omission which he can be made accountable for. In the case Nandasena v. A.G. , the Court held that âevery man is presumed to be responsible for his acts till the contrary is clearly shownâ.^13
Conclusion
The classical approach to criminology emerged as a result of the critique of the irrationality of previous theories. The influences of the pure-classical and neo-classical approaches of criminology are explicit in the legal doctrines that emphasize the psychology of crime, sentencing principles and the structures of punishments. Philosophically, the ideas of the Pure-Classical School are reflected in the contemporary âjust desertsâ approach to sentencing. The just deserts approach is based on four basic principles. First, only a person who found in guilty by a court of law can be punished for a crime. Second, anyone found to be guilty of a crime must be punished. Third, punishment must not be more than a degree commensurate to or proportional to the gravity of the offence and culpability of the offender. Fourth, punishment must not be less than the gravity of the offence and culpability of the perpetrator (Burke, 2009). These principles have clear foundations in the theoretical tradition established by Beccaria and Bentham. Considering the psychological condition of the perpetrator is one of the key principles of the Neo-Classical Theory. This approach has widely developed the notion of the â Mens Rea â (mental element of a crime) in modern substantial criminal law. The classic approach on criminology has also contributed to the development of prison structures and detention systems. Famous prison model, called Panopticon suggested by Bentham,^14 was used as an exemplary prison model 19th and 20th centuries. This concept helped to the development of the modern prison conditions. The pure- and neo- classical theories formed a foundation to the Packerâs due process model and crime control model in criminal justice. Herbert L. Packer (1968) observed that the whole contemporary criminal justice system is founded on a balance between the competing value systems of due process and crime control.
(^11) Gamini v. Attorney General [1999] 1 Sri LR 321. (^12) Article 13(5) of the Constitution of Sri Lanka: Every person shall be presumed innocent until he is proved guilty. (^13) Nandasena v. A. G [2007] 1 Sri LR 237. (^14) In 1791 Bentham published his design for a new model prison called a Panopticon.
Therefore, these two criminological schools laid the foundations for the later analytical theories of crime causation, such as the positivist school of criminology.
References
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