Ch. 2 - Classical Theory in Crime

Classical Theory in Crime

• People are rational

• Crime is a free choice

• Everyone should be treated the same under the law

• Focus should be on the offence, not the person

The classical perspective is reflected in many aspects of the contemporary criminal justice system. There are however limitations and challenges in implementing the exact theory (the three main challenges). Canada only partially adopts this theory in our system.

Objective of the Law

To protect individual rights and allow the free exercise of choice among individuals as far as this is possible without leading to social harm.

Stages of Legal Development

(England)

• Feudalistic Structure: Monarchy had supreme power over individuals in a state. Rights for everyone (e.g. women and lower classes) were not prevalent.

• Capitalist Class: Began with the mercantile capitalism (merchant trading in nation states). Conflict arose through this as the monarchy played a major role. The eventually led to a new form of law and criminal justice through power being delegated to elected officials, and parliaments.  

Social contract

Means that a group or groups of rational and self-interested individuals came together to form a contract, which created society.

• Social rules were created that meant, while each individual gave up a bit of freedom, everyone’s self-interests would be protected.

Feudalism

A general set of reciprocal legal and military obligations among the warrior nobility of Europe during the Middle Ages.

• Shifted to capitalism with the political and economic changes.

• During this era rights were not common, and there was no formal legal status.

• Social rank determined the nature and extent that someone had rights.

• Common law emerged from this because monarchs put together local traditions and customs into a general form of administration.

Capitalism History / Transformation

An economic system where economic activity is primarily directed toward the production of commodities for sale in the marketplace.

• The age of mercantile capitalism (i.e., merchant trading in the context of nation-states).

• Monarchy had an unfair advantage through restricting the activities of mercantile capitalists.

  • Led to conflict (French and American Revolution).

• Led to creation of centralized institutions.

  • Wanted long term economic success.

  • Formed the criminal justice system and law.

Development of Classical Theory in Crime

The development of classical conceptions of law and the criminal justice system was grounded in the transition from feudalism to capitalism.

• There were major political and economic changes occurring in Europe that led to a revolutionary shift.

Political Changes

The emerging bourgeoisie, or capitalist class, challenged the rule of the landed aristocracy. This caused a shift from feudalism to capitalism (based society).

• Demand for more rights for everyone.

Economic Changes

Economies that were based on agriculture moved towards becoming a commercial market economy and then industrial economies.

• More people wanted autonomy in the market.

• Monarchs could not maintain rigid control (e.g. HBC in Canada - monopoly).

• Bonds were broken and peasants could work anywhere.

• Property rights emerged.

Two Legal Systems in Canada (and the name)

Canada’s legal system is called bijuralism, which means that we have both legal traditions

• Common Law: Developed in Great Britain, was based on the decisions made by judges in the royal court. Over time, this practice evolved into a system of rules based on precedent. Used by all the other provinces in Canada besides Quebec.

• Civil Law: From Roman law and the Enlightenment. The legal system in many civil law countries is based on one or several codes of law, which set out the main principles that guide the law. Quebec uses this system.

Canada Context Prior to Law Creation

• 1867: Canada became a country under the British Empire under the British North America Act. This happened through merging the Upper and Lower colonies to make the Dominion of Canada.

• 1982: The Constitution of Canada became the supreme law of Canada, including the Charter of Rights and Freedoms. Canada gained major independence from Britain at this time.

Classical Theory

*Remember Canada does not adopt all of these parts that are relevant to classical theory. Only some parts.

Based on individual rights, the human capacity to reason, and the rule of law. It assumes the relationship between human nature and the state

• Specific offence that corresponds with criminal law.

• It is individual choice to commit a crime.

• Humans are rational and should be punished for acting irrational.

• Free will, self-interest and equal capacity to reason.

• Penalties should reflect the crime committed (similar penalties for similar crimes).

• Pleasure-pain principle.

• Advocates for reform of the legal system for accessibility (this is not present in Canada).

• Basic principles / a legal-philosophical approach.

Classical Theory Assumptions

1. Role of the state is vital: Has to regulate human interaction.

2. Social contract between individual rightsholder and the state: “Rule of the Law” which means everyone is subject to the law, everyone is equal under the law, and no one is exempt.

3. Consensus to give up certain rights: Individuals give up certain rights in exchange for protection from other individuals and the state itself.

Justice System Principles

1. Equal protection of rights for everyone

2. Social contract maintained through punishment: Punishment is based on the pleasure–pain principle, in which the pain of the sentence should outweigh any pleasure to be gained from committing the crime.

Pain-Pleasure Principle

Means people commit crime when they believe the benefits will outweigh the punishment, and criminal law works by increasing the pain to deter crime.

An example of this is the increased regulation around gun laws in Canada after the Nova Scotia massacre.

Leading Figures in Classical Development

• Cesare Beccaria

• Jeremy Bentham

Cesare Beccaria (Classical Theorist)

Punishment should be fair, reasonable, and useful, not cruel.

• Criticized harsh and unfair criminal justice systems

• Saw crime as harm to society, not just to one person

• Opposed extreme punishments (like torture or excessive penalties)

• Supported utilitarianism → laws should create the greatest good for the greatest number

• Believed punishment should:

  • Fit the crime

  • Prevent future crime

  • Not be excessive or unfair

Jeremy Bentham (Classical Theorist)

People act to seek pleasure and avoid pain.

• Also supported utilitarianism.

• Believed all human behavior follows the pleasure–pain principle.

• Crime happens when:

  • The pleasure of the crime seems greater than the punishment.

• Therefore, punishment should:

  • Be more painful than the crime is pleasurable.

  • Make crime a bad choice rationally.

Bentham believed crime can be prevented by making punishment outweigh the reward.

Challenges in Classical Theory

• Justice & Equality Problem: Treating everyone the same can be unfair when defendants are not rational (e.g., mental illness, children, coercion).

• Bureaucratization of the State: As governments became more bureaucratic, efficiency was prioritized over fairness and individualized justice.

• Vested Interests: Powerful groups resisted classical ideas and used the law to protect their own authority rather than apply it equally.

“Just Deserts” & 4 Principles

Just Deserts is a classical sentencing approach that requires only the guilty to be punished and demands punishment that is proportionate to the seriousness of the offence and the offender’s culpability.

It’s about fairness and proportionality, not rehabilitation or future risk.

1. No one other than the guilty person is punished.

2. Anyone found guilty must be punished.

3. Punishment must not be more than required.

   1. Cannot be too harsh.

4. Punishment must not be less than required.

   1. Cannot be too light or lenient.

Two Major Concerns with Classical Theory

1. Problems with fairness in the case of individuals.

2. Neglect of inequalities in the broader social structure.

Problems with fairness in the case of individuals

(Two Major Concerns with Classical Theory)

This criticism led to neoclassical reforms, which allow some flexibility (e.g., considering intent, mental capacity).

But the core problem remains: the system still mainly focuses on the offence, not the individual. Treating everyone “equally” can actually be unjust when people are not equally situated.

• Classical theory is unfair because it punishes people based on the offence alone ignoring individual differences in capacity and circumstances.

Neglect of inequalities in the broader social structure.

(Two Major Concerns with Classical Theory)

Crime should be evenly spread across society; however, it is not. It is greater in poverty-stricken areas. This suggests that crime is not just about individual choice, but rather also about poverty, intergenerational trauma, lack of resources and opportunities, etc.

• Rational choice may actually mean offending when there is not other way for someone to be able to survive.

• Equality before the law ignores different socioeconomic statues, inequality, treats unequal people as if they were equal.