finished assignment theories of crime

8/7/2019 finished assignment theories of crime

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Lydia Ross

N6254977

JSB272: Theories of crime

Examine the legacy of classical criminological theory as evidenced in the

current (Australian) criminal justice system.

The purpose of this essay is to examine the legacy of classical criminological theory

as evidenced in the current Australian criminal justice system. Through research of

the relevant literature a definition will be constructed of classical criminology and

what this theory conveys about criminality. This research will then be put in

Australian context- providing evidence that the classical criminological theory

influences the current Australian criminal justice system.

To define a criminological theory it must first be put into perspective- all theoretical

perspectives emerge and develop within certain social, economic and political

contexts. When understanding the nature of social order, criminological theories

incorporate certain assumptions, understandin gs and agendas. Firstly the context in

which classical criminology evolved will be described.

During the medieval period the law was seen as created by God, and therefore

based on religion. The Church of Rome governed thought of law and crime by

teaching that God could define what was wrong and right. Throughout this medieval

period, extreme physical torture was often used to obtain a confession and

accordingly to determine a persons guilt. Once a person was found guilty of a crime

punishment would be publicly displayed as brutal and punitive (Tierney, J 2009).

Rulers used torture to obtain confessions, and often the death penalty had been

applied to such crimes as petty theft and deception. The severity of the punishment

would be measured by the harm done to what the church and monarchy valued


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most. Furthermore, corruption was prevalent throughout this system of justice.

Equality before the law was never practiced; the church, monarchy and nobles used

their divine right for financial gain (Tierney, J. 200 9). Rennie, 1978, explains the

means by which the upper classes exempted themselves from punishment is in itself

an absorbing book on legal history.

Classical criminology developed during the late eighteenth century and was

reflective of the political and philosophical context of this time; this was associated

with the Enlightenment period. Throughout this Enlightenment there was a transition

from feudalism to capitalism, and subsequently the growth of power in the capitalist

class. New enlightened ways of dealing with crime started to evolve (Tierney, J

2009).

Enlightenment philosophers such as Voltaire, Rousseau and Locke explored ideas

such as natural rights, citizenship and equality, all of which were basis for the

development of social democracy (Tierney, J 2009). This period demonstrated a

massive social change which was influenced by science, rationality, logic, reason

and individualism and included society breaking away from religious philosophy

(Bernard, T et al. 2010). Philosophers recognized the equal rights for all people

under the law; asserting that punishment should not be excessive, as it had been in

previous years. A famously used enlightenment expression is The state should

serve the people, rather than the people serve the state .

Classical criminology theorises in a modern capitalist society context with concern

for the law, crime and the criminal justice system. Classical criminology provoked

individuality, freedom, rationality, and equality over fate and superstition (Q.U.T.

2011). A major assumption of classical criminology is the nature of human beings;


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humans are primarily motivated by a desire for pleasure, proving that humans are

essentially selfish and self -seeking. However in addition to this, humans are also

rational. Criminals were therefore perceived as having free -will, and being self -

seeking and rational (Tierney, J 2009). From a classical criminological perspective,

the law and the criminal justice system could therefore respond to criminals by

restraining peoples self-seeking tendencies and making the law codified, rational

and universal (Siegel, L 2007). This in turn would provide a formalized, universal,

fair, just and equal criminal justice system.

Cesare Beccaria formed a basis for classical criminology the ory. Beccaria claimed

that humans are born as free, equal, and rational; they also have natural rights, such

as the right to privately owned property, and natural qualities, such as the freedom to

reason and the ability to choose actions that are in their own best interests. This

ideology challenged the dominant idea that humans are predestined to fulfil a certain

destiny (Lanier, M; Henry, S 2009).

Beccarias work reflected enlightenment ideas concerning the notion of justice and

human rights; and noted th at humans should be treated equally with no prejudice

from the rank of a person. In addition, legal rights should be universal; judges

should be neutral in accordance with the dictates of the law; punishment should be

set at an appropriate minimum level of severity; all accusations should be made

public and the accuser identified; and the law itself should be clear, and formulated

in a way that it minimizes the restrictions of a persons freedom (Tierney, J 2009).

Beccaria also focused on what should be identified as a criminal act. Rather than

acts being criminal because of the offense against the powerful, he saw crime as

offences against fellows humans and therefore against society itself. Central to this


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ideology was the concept of the social contract (Lanier, M; Henry, S 2009). Social

contract theory is the effort to build consensus of shared values and ideals shared

with the people and the state (Jos, P. 2006). The basic concept behind the social

contract is that people would give a proportion of thei r liberty for peace and safety;

and people would adhere to this contract as they recognize the benefits they reap.

This, in theory proves that people are essentially selfish (Tierney, J. 2009).

In addition to the social contract, theorists recognized that all people also have free

will, and anyone could choose to go against the social contract. Therefore

punishment, used as a deterrent, was necessary. Punishment should not be used for

revenge or retribution, and if it is to be used and successful it must b e swift and

certain in its application (Tierney, J. 2009). Beccaria believed imprisonment to be the

only reasonable form of punishment that could be made to fit the crime through the

length of a sentencing. Beccaria reasoned that because people are rationa l, they

would accept the arrangement with the state that offenders could be punished.

People would appreciate the benefits for themselves and society which were

produced by the contract (Lanier, M; Henry, S 2009).

The social contract is closely associated with the utilitarian concept of the greatest

happiness for the greatest number (Hopkins, R. 2009). This meant that people and

social institutions should be useful and make a positive contribution to society. Crime

was considered damaging against society as a whole, and the law should be used

as the tool to obtain the greatest happiness for the greatest number of people

(Tierney, J. 2009).

Jeremy Bentham, a supporter of Beccarias work and the classical criminology

theory, expanded on Beccarias initial work. Bentham claimed that people act to


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increase positive results through their pursuit in pleasure and to reduce negative

outcomes through avoidance of pain. This concept of pain and pleasure included not

only physical sensations but also political, mor al and religious dimensions (Lanier, M;

Henry, S 2009). Bentham believed laws should ban harmful behaviour, if there is a

victim involved. Crimes without victims, consensual crimes and the act of self -

defence should not be noted as a criminal act, as they create more good than evil.

Bentham also believed that punishments should be scaled so that an offender can

rationally weigh up the cost-benefits of committing the crime (Lanier, M; Henry, S

2009).

In summary, classical criminology believed criminality derives from the assumption

that criminals are pleasure-seeking individuals who have failed to grasp the irrational

nature of their behaviour. Based on the nature of people, classical criminology was

concerned with the establishment of an effective and effici ent criminal justice system;

including the codification of the law and the deterrence from criminal activity through

punishment (Lanier, M; Henry, S 2009).

The Australian criminal justice system represents a classical criminological

perspective through its formalised, universal, fair, just and equal proceedings. The

Australian Criminal Code Act 1995 reflects these characteristics. The criminal code

act is designed to achieve consistency and equity in the operation of the

commonwealth criminal law throughout Australia (Commonwealth Director of Public

Prosecutions. 2011).

Australias criminal justice system seeks to serve two purposes. This first derives

from the utilitarian perspective and is instrumental: that the state responds to crime

to secure benefits of the wider society. The second purpose is non-utilitarian, and is


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symbolic: that state addresses imbalances caused by those people who take illegal

advantage of another or diminish their human dignity (Daly, K. 2006). These two

purposes can be associated with classical criminology theory.

The first purpose, in more detail, can be closely related to the utilitarian perspective

and focuses on the greater good of society by means of the establishment of the

social contract (Daly, K. 2006). Australian legislation can be perceived as a social

contract between the people and the state as citizens are giving up some portion of

their liberty for peace and protection; and assuming people are rational, people

adhere to the law.

The second purpose of the criminal justice system is non-utilitarianism and seeks to

address the imbalances caused by those people who take illegal advantage of

another or diminish their human dignity (Daly, K. 2006). This can be closely related

to classical criminologists recognising that people also have free-will and people do

choose to go against the social contract, which makes punishment necessary as a

deterrent for criminal activity. Beccaria believed imprisonment to be the only

reasonable form of punishment. In Australia, imprisonmen t is the harshest form of

punishment accessible.

In regards to the classical criminological theory, punishment should not be used for

revenge or retribution, and if it is to be used it must be swift and certain in its

application. Punishment should be proportionate to the injury caused by the crime.

The Australiancriminal justice reflects this through imprisonment times being

proportionate to the crime committed by the offender.

There are two value systems within the Australian criminal justice system, wh ich can

also be related to the concept of classical criminology. There is the due process


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model and the crime control model (Daly K. 2006). The due process model is

concerned with the accuracy and reliability of the criminal process. Due process is

also from autilitarianism perspective and seeks to ensure that crime is controlled in a

lawful manner; to ensure that citizens are not subject to abuses of the state power.

The crime control model is concerned with the efficiency of the criminal justice

system and seeks to control crime by detaining and convicting those who commit

crime; and this can be related to the deterrence process which is noted in classical

criminology theory.

In conclusion, the legacy of classical criminology theory is evidenced througho ut the

current Australian criminal justice system. Classical criminology theory perspectives

are evident in two main models of the Australian criminal justice system. Firstly,

deriving from utilitarian perspective, a social contract, or the Australian legi slation, is

put in practice to produce the greatest good for the greatest number of people.

Australian citizens tend to abide by the law for peace and safety within their

everyday lives. Secondly, punishment is a critical function of classical criminology

and an established part of the Australian criminal justice system, used to deter those

people who wish to disobey the law. The imprisonment of criminals in Australia

follows the ideology of the classical criminologist Bentham, and is proportionally

scaled to the harm caused to the state by the crime.


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Commonwealth Director of Public Prosecutions. (2011). The Criminal Code Act

1995. Available: http://www.cdpp.gov.au/LegislativeFramework/CriminalCode.aspx.

Last accessed 14th April

Bernard, T. J., Snipes, J. B., Gerould, A.L. (2010). Classical Criminology, in

Theoretical Criminology (6th edition). New York: Oxford University Press..

Daly, K. (2006). Aims of the Criminal Justice System, in Israel, M., Daly, K. (eds).

Crime and Justice a Guide to Criminology. Pyrmont: Lawbook Co

Hopkins, R. (2009). Classical Criminology. In: An Introduction to Criminological

Theory. 3rd ed. London: Willan Publishing

Jos, P. (2006). Social Contract Theory : Implications for Professional Ethics. The

American Review of Public Administration. 36 (2)

Lanier, M; Henry, S (2009).Essential Criminology. America: Westview

Mill, J (2001). Utilitarianism. United States of America: Hackett Publishing Company

Q.U.T. (2011).JSB272 Study Guide. Australia: Queensland University of Technology.

Siegel, L (2007). Criminology: theories, patterns, and typologies. 9th ed. United

States of America: Thomas Waldsworth. p96-98.

Tierney, J (2009). Key Perspectives in Criminology. England: Open University Press

Ysabel Rennie, The search for the criminal man (Lexington, MA: Lexington Books,

1978):132.


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finished assignment theories of crime

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