The Positive School Criticised
Chapter Thirty-Three
Syllabus topic 2, "Criminology From - Ancient to Modern thought"
Pages 111 to 113 of 528
In one line
The Positive School's findings were wrong, its method was defective, and its politics were dangerous, yet it created the discipline and its central move, studying the offender scientifically, has never been given up.
In the wording a student can write in an exam: the criticism of the Positive School falls under five heads: defective method, principally the absence of a control group; circular reasoning; the confusion of correlation with cause; the destruction of responsibility and with it of the individual's protection against the State; and the neglect of the social and economic determinants that the school's own sociological wing later supplied.
The five criticisms
One: method. Lombroso measured prisoners without measuring anybody else. Goring's The English Convict of 1913 supplied the control and the reported differences vanished. A study without a control group can establish nothing at all about what distinguishes one population from another, and this is the single most important methodological lesson in the whole of Module I.
Two: circularity. The characteristics said to cause criminality were derived from a group defined as criminal by conviction. Since conviction is the output of the filters described in the chapter on the dark figure, and those filters select for poverty, low education and lack of representation, the school measured the filter and reported it as a discovery about human nature.
Three: correlation taken for cause. Even where a difference is real, the school inferred a direction of causation without evidence. Prison itself alters a body: poor food, injury, tattooing and untreated illness are consequences of the life the sample had led, not causes of the offending.
Four: determinism destroys responsibility, and with it the individual's protections. If nobody chooses, nobody is to blame, and the criminal trial's central question becomes irrelevant. What replaces it is an assessment of dangerousness, and an assessment can justify detaining a person indefinitely for what he might do. Preventive detention, habitual offender legislation and the criminal tribes legislation are all this logic in operation.
Five: it neglected the social. Lombroso's early work looked inside the body for causes that were largely outside it. Ferri corrected this within the school's own lifetime by adding physical and social factors, and the sociological criminology of the twentieth century completed the correction.
Two consequences that must be stated
Eugenics. A theory that criminality is inherited leads directly to proposals to prevent the birth of criminals. Sterilisation programmes in several countries in the first half of the twentieth century rested on exactly this reasoning.
The criminal tribes legislation in India. The Criminal Tribes Act, first enacted in 1871 and extended thereafter, permitted the notification of whole communities as criminal by birth, with registration, restriction of movement and settlement in designated places. The legislation was repealed in 1952 and the communities were denotified, but the stigma has outlasted the statute by generations, and the denotified communities remain among the most heavily policed and least protected groups in the country. This is the point at which Lombroso stops being a European curiosity and becomes an Indian legal history, and an answer that makes the connection is doing postgraduate work.
The Positive School Criticised
What survived
Be careful to give this its full weight; the school is not simply a mistake.
The scientific method itself. The proposition that offending can be studied by observation and comparison rather than settled by philosophy is the school's, and it is the foundation of the discipline.
The shift from act to actor. Every school after it studies persons and conditions, not only acts.
Falsifiability. Lombroso made a claim precise enough to be tested and refuted. That is what a scientific claim is, and the chapter on whether criminology is a science relies on it.
Individualisation of the response. The idea that the sentence should be fitted to the offender is the school's, and it is now Indian law: probation, parole, remission, the requirement of a pre-sentence report and the sentencing material described in Module IV all descend from it.
The entry of the expert. Medical, psychiatric and social work evidence in the criminal process.
And the humane side. If the offender did not fully choose, then savage punishment is pointless, and the school argued against the brutality of nineteenth-century penal practice.
A worked example
A study is published claiming that a particular genetic variant is more common among violent offenders.
Apply criticism one. Was there a control group, matched for age, sex and social background? If the comparison is between prisoners and the general population, the study has established nothing.
Apply criticism two. How was the offender group defined? If it is convicted prisoners, the sample is the output of the criminal justice filter, and any characteristic that makes conviction more likely, including anything correlated with poverty, will appear to be associated with violence.
Apply criticism three. Suppose the association survives. Which way does it run, and through what mechanism? A variant associated with impulsivity might raise the risk of many behaviours, of which offending is one, and might operate only in particular environments.
Apply criticism four. Now suppose everything holds up. What follows? Nothing about any individual, because an elevated group risk does not identify a person. And the moment it is used to identify a person, the school's central danger has arrived: detention or supervision for a predicted propensity rather than for an act.
The conclusion for an examination. The Positive School's questions are still being asked, in better laboratories, and its errors are still available to be repeated. That is why the criticism is worth learning as a method rather than as a list.
The Positive School Criticised
Quick revision
- Five criticisms: no control group, corrected by Goring's The English Convict, 1913; circular reasoning from a sample defined by conviction; correlation taken for cause; determinism destroying responsibility and the protections that go with it; and neglect of social and economic causes, corrected within the school by Ferri.
- Consequences: the eugenics movement, and in India the criminal tribes legislation of 1871, repealed in 1952, whose stigma survives among the denotified communities.
- What survived: the scientific method; the shift from act to actor; falsifiability; individualisation of the sentence, now expressed in probation, parole and pre-sentence material; the entry of medical and psychiatric expertise; and the argument against savage punishment.
Test yourself
1. Which single methodological defect does most of the damage, and how was it demonstrated? The absence of a control group. Lombroso measured prisoners without measuring a comparable non-prisoner population, so any characteristic common in the social strata from which prisoners are drawn appeared to be a characteristic of criminals. Charles Goring demonstrated it in The English Convict, 1913, by measuring about three thousand convicts against properly matched controls and finding no physical criminal type.
2. Explain the circularity objection. The stigmata were derived from a population defined as criminal by the fact of conviction, and were then offered as the cause of criminality. Because conviction is the product of a long selection process that favours the poor, the uneducated and the unrepresented, the features identified were features of that selection. The school measured the operation of the criminal justice system and reported it as a discovery about human beings.
3. What is the Indian legal consequence of the born criminal idea? The Criminal Tribes Act, first enacted in 1871, which permitted whole communities to be notified as criminal by birth and subjected to registration, restriction of movement and forced settlement. It was repealed in 1952 and the communities were denotified, but they remain heavily policed and socially stigmatised, so the effects of the legislation have long outlived the statute.
The rest of this subject
These notes are cut from the University's printed syllabus. Open the syllabus itself, or the past papers, for the same subject.