The Classical School: Beccaria

What follows from studying the offence and not the offender

This is the point that separates a good answer from a list.

Because the Classical School treats every person as an equally rational chooser, it has no interest in the offender's biography. Age, poverty, upbringing, mental state and provocation are all irrelevant, because the calculation is assumed to be the same for everybody. The penalty is attached to the act.

That is the School's greatest strength and its fatal weakness at once. Its strength is that it makes the law certain, equal and free of the arbitrary discretion the previous chapter described. Its weakness is that it produces obvious injustice in the cases where the assumption is false, and the Neo-Classical School exists to repair it.

Criticism

The rational calculator is a fiction. Much offending is impulsive, intoxicated, angry or desperate, and no calculation of any kind takes place.

It ignores capacity. A child of eight and an adult are not equally able to weigh consequences, and treating them alike is not equality.

It ignores causes. By assuming free will as a premise it excludes the entire question of why some people choose crime and others do not, which is the question the Positive School was formed to ask.

Its proportion is measured by harm alone. Two people who cause the same harm with wholly different states of mind are treated identically, which offends the ordinary sense of desert.

And in practice its rigidity broke down. Fixed penalties with no discretion produced results so harsh that juries refused to convict, which is the same evasion the Pre-Classical severity had produced.

A worked example

Two men each take a bicycle worth eight thousand rupees.

Bhaskar is twenty-six, employed, and takes it because he calculates that the chance of detection is low.

Chandu is thirteen, is illiterate, and takes it at the direction of an older man who has been feeding him.

On strict Classical principles the two are treated identically. The harm is the same, the offence is the same, the penalty is fixed by law, and the judge has no power to distinguish. Chandu's age and circumstances are simply not part of the enquiry.

Is that just? Nobody now thinks so, and that reaction is the origin of the Neo-Classical School. But notice what the Classical position buys. Neither man can be sentenced more heavily because he is poor, or because the judge dislikes him, or because the victim is influential. The gains of certainty and equality are real and they are the gains an Indian accused still relies on.

Now apply proposition four. If the chance of detection for bicycle theft in that locality is one in fifty, then no increase in the sentence will affect Bhaskar's calculation much, while a visible increase in the chance of being caught will affect it a great deal. That is Beccaria's central practical claim, it is testable, and modern research supports it.

Quick revision

• Cesare Beccaria, On Crimes and Punishments, 1764. Premise: the social contract, under which each surrenders the smallest portion of liberty, so any punishment beyond necessity is an abuse.
• Free will, hedonism, and the offence rather than the offender as the object of study.
• Certainty, then swiftness, then severity. A moderate certain punishment deters more than a severe uncertain one.
• Offences and punishments fixed in advance; no judicial discretion; equality before the law; proportion measured by harm to society.
• Publicity, speedy trial, presumption of innocence, abolition of torture, abolition of the death penalty in almost all cases, and prevention preferred to punishment.
• Criticism: the rational calculator is a fiction; capacity is ignored; causes are excluded by assumption; identical harm with different states of mind is treated alike; and rigid fixed penalties produced refusals to convict.

Test yourself

1. Set out the central propositions of the Classical School. That every person has free will and is a rational chooser; that people seek pleasure and avoid pain, so an offence is committed when its expected gain exceeds its expected cost; that punishment must therefore exceed the gain and go no further; that certainty and swiftness deter more than severity; that offences and punishments must be fixed in advance by law with no judicial discretion; that all are equal before the law; and that punishment is proportioned to the harm the offence does to society.

2. Why does the School study the offence rather than the offender, and what does that cost? Because it assumes every person calculates alike, so nothing about the individual can affect the analysis. The gain is certainty, equality and the elimination of arbitrary discretion. The cost is that age, capacity, mental state, provocation and circumstance are all excluded, which produces manifest injustice in exactly the cases where the assumption of equal rational capacity is false.

3. State Beccaria's argument against torture and against the death penalty. Torture punishes a man before he is convicted, and it measures endurance rather than truth, so the strong guilty man escapes while the weak innocent one confesses. The death penalty exceeds the sovereign's authority, because the social contract cannot have transferred a right over life that no individual holds over himself, and it is in any event less deterrent than perpetual servitude, whose effect is prolonged and continuously visible.