Classical and Neo-classical Theories - Essay Example

ical and Neo ical Theories One of the main basics of the common law system is the concept of justice and fairness personified in ical principles of government. It is important to draw a division between the righteous approach of classicism with its emphasis on the social bond and the balance between the social good and individual liberty which are the center of ‘conservative’ thinking of crime and punishment. Classicism is the starting point for most theoretical discussions about the causes of crime. Classicism emphasizes that humans are born free and people exercise free will. These classical ideas have enjoyed a rebirth in current criminology. The importance of classical ideas is most obvious in the administration of justice especially in the processes of settlement and sentencing. In the formulation of classical principles, particularly the emphasis on "due procedure" and "natural rights", one can also see the origins of human rights. It is necessary to distinguish between popular conservatism and classicism. The most enduring pragmatic question arising from neo-classical and choice theory outlooks is the important question of the efficiency of prevention. Prevention is the central policy outcome of neo-classical theories (Leung, 2003). The majority Classical theories of crime causation make certain basic assumptions. The central features of the Classical school of criminological thoughts are: Human beings are fundamentally rational, and most human behavior is the result of free will coupled with rational choice. Pain and pleasure are the two central determinants of human behavior. Punishment is required to discourage law violators and to serve as an example to others. Core principles of right and wrong are inherent in the nature of things, and cannot be denied. Society exists to provide benefits to individuals which they would not receive in isolation. Certain key rights of individuals are inbuilt in the nature of things, and governments which break those rights should be dissolved. Crime ridicules the quality of the bond between individuals and society (Schmalleger, 2005). The Classical View of punishment system refers to penology, led the way by the eighteenth-century penologist Ce-sare Beccaria, was a hedonist in nature, discarding the cruel punishments of earliest and medieval times and argued that there should be equality of punishment for all those criminals having committed the same offence. In his book Crime and Punishment (1764), Beccaria argued that the purpose of punishment was fundamentally deterrent in nature. He further stated that it was the role of the legislators to determine the suitable punishment for a given offence, and hence he was opposed to any discretionary power being given to the court in matters of sentencing. As per this view, more emphasis was to be placed on the crime than the criminal and the trial by jury system follows from this by creating a jury whose purpose is to determine whether or not a crime has been committed by the accused. As a result of this outlook, the “definite sentence system” changed, whereby deterrence was upheld as the sole justification for punishment and specific sanctions were prescribed proportionately for each offence according to their nature and seriousness. This meant that judges had a lot less discretionary power in deciding sentences and reduced the courts’ function to merely determining guilt or innocence, with no power to adjust the punishment according to the situation of the offender or the circumstances of the crime. On the contrary to the classical view, the neo-classical view argued against equality of punishment, differing that classes of criminals such as minors, those of unstable mind and those committing the crime under justifying conditions would not be included under such a principle. It was argued that such factors, would affect the power of an offender to calculate the risks of pleasure and pain involved by engaging in criminal conduct. Hence the neo-classicists asserted, the mental condition and objective of the offender in committing the offence should be taken into consideration in deciding the punishment. Consequently there was a shift from punishment of the crime to punishment of the criminal and an emphasis on the need for individualized rather than standardized punishment. This in turn meant classification of criminals in order to improve the efficiency of reformative punishment (John, 2003). The classical view of the CL (Crime Law) is tied up with the idea of the rule of law. The idea of the rule of law is based on feature assumptions concerning the possibility to know and predict the CL, to identify unfailingly unlawful acts and lawbreakers. Contemporary law and life have produced ever more criminal rules and cases in which these beliefs are no longer met. Hence post-classical CL has a feature in common with pre-classical law, where ‘setting examples’ also was the solution to the inability of governments to fight crime. There has been a worldwide increase in crime rates due to economic growth, urbanization, migration and mobility. Recognition of the ideological nature of the classical CL makes to realize that the present changes of the CL may be as fundamental as was the quick rise of the classical CL. The classical CL was part of the process of functional differentiation characteristic of modernity. The neo-classical model represents further differentiation and rationalization within the classical model. Though one should be cautious of an idealization of crime as far as the motives of criminals are concerned, it seems that what are postclassical CLs deficiencies from a classical point of view, can also be seen as a part of attempts to deal with crime in a more incorporated and sociologically sensible way. The inner understanding that can be seen as hidden in the post-classical CL is that it is much more efficient to prevent crime by changing social conditions than it is to punish just to deter (Roos, 1998). The projected solution to the problems of sentencing and corrections was to return to a justice model of sentencing and corrections. From this perspective, sentences should be decided on the basis of fair and just sentencing policies. The model is based on retributive ideas of deserved punishment, or the idea that the sentence should fit the crime. Criminals would receive their just desserts – the deserved punishment – nothing more, nothing less. Advocates argued that it is not morally justified to use people in scrupulous ways to achieve public goals. Punishment should be proportionate to the crime. Under this model, individualized treatment and discretion would be eliminated. The justice model of Sentencing and Corrections carried with it direct implications for public policy. Criminals should be given sizeable routine protections. As a result; legal rights of inmates became very important to the courts and corrections. Rehabilitation should be voluntary and not forced. The largest policy effect was the need to change from an indeterminate sentencing model to determinate or flat sentencing (MacKenzie, 2006). Neo-classical criminologists recognized that the free will approach had a number of shortcomings. Neo-classical criminologists considered the types of criminal behavior the model is inadequate to explain. It was long recognized that all persons were not completely responsible for their own actions. It is also noted that people appeared to be compelled by forces beyond their rational control. There were some who behaved "irrationally." Separating the rational from the irrational has become a continuing problem for modern criminal justice systems. Another lawful concern was whether individuals can be influenced by others to do things they would not normally do (Beccaria and Bentham, 2005). Within criminology the classical schools significance reduced as positivist explanations of criminal behavior emerged and became leading. Yet, most modern criminal justice systems have never rejected free will explanations of criminal behavior. The classical model has re-emerged in criminology and American jurisprudence as the "justice model" and rational choice clarifications. Work cited Beccaria C. and Bentham J., The Classical School 22 November 2005, 11 August 2006 John, T. Dealing with Deviance: Criminal Punishment and State Control National Law School of India University Bangalore, 2003 12 August 2006 < http://www.altlawforum.org/Resources/lexlib/devance> Leung, K.K. Theoretical Criminology, 2003 Course Outline, Master of Social Science in Criminology, 10 August 2006 < http://www.hku.hk/sociodep/mss-theoretical-2002/outline03.doc> MacKenzie, D.L. What Works in Corrections - Reducing Recidivism, Series: Cambridge Studies in Criminology, July 2006. 11 August 2006 < http://www.cambridge.org/us/catalogue/catalogue.asp?isbn=052100120X&ss=exc> Roos, N.H.M. On Crime and Time,1998 10 August 2006 < http://www.reds.msh-paris.fr/communication/textes/roos4.htm > Schmalleger, F. Criminology Today, Third Edition Update, Prentice Hall Companion Website 2005, 11 August 2006 Read More