A Comparitive Analysis on Pre-classical And Classical School of Criminal Jurisprudence
Updated: Jan 18
There are mainly two primary schools of criminology classifications. The classical school and positivist school. Both schools have evaluated the concept of crimes concerning the ideologies and philosophies that were propounded or followed by society at their respective times. Before the emergence of the classical school, there existed another school namely the pre-classical school. Preclassical school is propounded between the 12th and 17th centuries.
There are 3 kinds of inquiries made by criminological theory-
1.criminological school tries to explain what constitutes a crime and what can be called a crime. The crime causation factors are something that is outside the purview of study for eg, climatic conditions.
2. what is the purpose of having punishments and what are the preventive methods that can be followed for regulating the crime.
3. The attitude of the people in the society towards crime and the criminal- the social attitude can be pointed out here. For eg, In India, dowry is an offensive act. The question of the attitude towards crime is a factor here.
The preclassical school existed before the emergence of the classical school. It is all about the interrelationship between the human beings with the supernatural powers, ie, religious factors- all the evils of the negative acts done by the human being are controlled by the evil spirit and its presence makes us engage in criminal activities. There was an argument that there was the ill intention behind the crime. it was not the free will which resulted in crimes. Even before the 12 to 17th century, crime was treated the same, but how to punish was the question that arose. During this period, the person was made to suffer some kind of torture. For eg, trial by battle, trial by ordeal, etc. In most cases, the punishment was understood as the act of inflicting pain. The idea behind this is to cure the person of his liability. The dominance of religion was the factor that supported the pre-classical approach. There was no legal text of criminal laws that was available at that time, and because of these reasons, it can be called as the unscientific approach-
Apostles played an important role in the pre-classical era. According to him -
1. Law is identified as the tool to distinguish right and wrong by the god-
2. It should be understood as the religious standards- man commits a crime due to his fallen nature and that fallen nature makes a human being to engage in human activities.
3. God guides the government to punish crime- clergy will determine what are the punishments given in the crime. Scholastic philosophy or religious prescriptions constituted the act of god. What all punishment we prescribe, the act of offence will be having more morality than the legal aspect
4. God offers salvation- the purpose of punishment- was to provide a solution and through that solution, you will see the cure.
Criticisms Against Pre Classical School
1. The theory was criticized as being unscientific, as it was purely based on religion and lack of proper material evidence.
2. What is right, wrong, sinfulness, virtue is relevant and relative in crime. The prohibition of the act is justification, but it may not always be right. For eg, killing someone; criminal law is not based on these aspects, or not relative or relevant aspects For eg. acts of adultery, gambling, etc will be an offence in one society, and may not be an offence in another society.
3. Monarchs and priests were identified as the power centres to determine the punishment. Both the law and punishment was handled by these elite classes
The classical school Emerged in the 18th century. It was propounded by Cesare Beccaria, who is the father of criminology. He is one of the leading propounders of the classical school. This school propagated the naturalistic theory of criminology and emphasized on the mental phenomenon of an individual. The School says that the free will result in the consequences of the crime committed. The classical school was well influenced by the natural law, social contract, and utilitarian theory
2 Aspects of Utilitarian theory propounded by Jeremy Bentham:
1. Determination of the act for pleasing the society may not be taken as the offence.
2. Small influence of Punishments in utilitarian theory.
Changes of the Society on the Emergence of this School
The society was less influenced by the religious fanaticism- independent thinking, emergence of a renaissance.
There was an application of reason in explaining the law. The reason is not divine, it is the social contract.
Crime is identified as an act of an individual, not an intent. The intention to cause a crime as well as an act comes from a person who does a crime.
Purpose of punishments- Punishment will cause pain, humiliation, disgrace will control an offender. The purpose of punishment was not limited to inflict pain. The fear of humiliation will help in controlling the individual to involve in criminal activities. The prevention of crime is given more importance than punishment for crime. After this period, numerous criminal codes have been made, and punishing crime only became the subsequent idea. The codification of criminal laws was suggested and punishment is justified as a general measure taken in public security. There came the essentiality of having a well defined criminal legal system.
Equal punishment for the equal offence was suggested- the principle of equality was strongly suggested by the present changes.
The school was against the arbitrary powers to judges. The discretion was given to judge to determine whether the offender or criminal should be given life imprisonment, the death penalty, etc. However, the theory reiterated that excessive discretionary should not be given to judges. There should be a strict application of the law and mandates for the rights of the individual.
There was an influence of social contractions in the development of this school- Montesquieu, Hume, Rosseau, etc.
The equality and natural rights of human beings have been advocated.
The theory was against severe punishments such as continuing torture and the death penalty.
Helped to have a comprehensive criminal policy and made the branch more scientifically focused. The theory also contributed many legal systems with criminal codes, and also played a key role in developing a new kind of criminal system.
Criticisms Raised Against Classical School
Over-emphasis was given to the free will of the people.
The state of mind of the offender is equally important and it was ignored by this approach.
Equal punishment for the same offence was a thesis neglecting many facts- the crime committed by the first time offender cannot be treated as the same for that of the habitual offender.
Apart from the classical school, there is another category called Neo-classical school. There was a group of criminologists trying to change the existing principles of the classical school, which was to see some changes over time. This period is called the neoclassical era. Certain criminologists called this a separate school, but generally, it is seen as the classical school's continuation. When a question arises in the classical school, it is necessary to connect it with the neoclassical school. Thus, the neoclassical school is an improvisation of the classical school and is not treated as a separate category.
ABOUT THE AUTHOR
Swathi. Ashok. Nair is currently Pursuing Law at School of Legal Studies, Cochin University of Science and Technology.
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