Term Paper: History of Crime and Punishment

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[. . .] In spite of the utopianism of Rousseau, the rest had a sense of reality. Reason is still primary, but it is not rebellious or bloodthirsty. Only in society could man realize his full potential. They believed in the social function of knowledge. Except for Rousseau, none of the philosophes agitated for a radical transformation of society. All of them, like Voltaire, protected enlightened absolutism.

Montesquieu published his Spirit of the Laws in 1748. He expressed here real detestation of despotism, clericalism and slavery. Being a member of the petit noblesse, he called for an "intermediary corps" and fundamental laws to temper the monarchy. His former colleague magistrates called it restitution of the ancient constitution. Therefore, he influenced both the aristocratic reactionaries who wanted to revitalize feudal estates and parliaments, and the honest liberals who idealized English constitutionalism with its principle of severance of powers, the basis of modern constitution making. This book was the first study in ideal sociological patterns. He advocated the examination of a variety of constitutional forms to discover the republic and its inner law. A network of interacting forces, if altered, affects the equilibrium of the whole structure. He is the founder of the typology of constitutional model.

The Encyclopedists had a more dynamic formation. Nevertheless, they also believed in metaphysical norms to which societies must conform. Hence natural religion, natural morality, natural rights, and natural economies should prevail. They also popularized the idea of progress, stated more clearly later by Turgot and Condorcet. They used the Leibnitz idea of continuity. The Physiocrats shared with the philosophes a rationalist, hedonist and utilitarian outlook. Natural rights were thought to be compulsory for economic progress. They were opposed to the rivalry and jealousies of mercantilism. They reduced all social science to economics. Quesnay started with an examination of the agricultural situation in France. He wanted protection for agriculture and promoted the Third Estate. However, agriculture came first and liberalism second. He thought there should be synchronization between positive laws and natural laws and that this harmony could be established via reason. The monarch was to be a "legal despot." This vague utopian constitutionalism was a regressive step from the ideas of Montesquieu.

Philosophy of Crime and Punishment

If we look into history we shall find the laws which are or ought to be, conventions between men in a state of freedom. The most part, the work of the passions of a few or the consequences of a fortuitous or temporary inevitability; not dictated by a cool examiner of human nature, who knew how to collect in one point the actions of a multitude and had this only [sole] end in view, the greatest happiness of the greatest number. Happy are those few nations, who have not waited until the slow sequence of human vicissitudes should, from the extremity of evil, produce a transition to good; but, by prudent laws have facilitated the progress from one to the other! Moreover, how great are the obligations due from mankind to that philosopher, who from the obscurity of his closet, had the valor to scatter amongst the multitude, the seeds of useful truths, so long unfruitful!

If we look into history we shall find that laws, which are, or ought to be, caucus between men in a state of freedom, have been, for the most part the work of the passions of a few. The consequences of a fortuitous or temporary necessity; not dictated by a cool examiner of human nature, who knew how to collect in one point the actions of a multitude, and had this only end in view, the greatest happiness of the greatest number.

The end of punishment, therefore, was no other than to prevent the criminal from doing further injury to society, and to prevent others from committing the like offence. Such punishments, therefore, and such a mode of exact them, had to be chosen, that would make the strongest and most lasting impressions on the minds of others, with the least torment to the body of the criminal.

The torture of a criminal during the course of his trial is a cruelty consecrated by custom in most nations. It is used with an intent either to make him confess his crime. To explain some inconsistency into which he had been led during his examination, or discover his accomplices, or for some kind of metaphysical and incomprehensible purgation of infamy, or, finally, in order to discover other crimes of which he is not accused, but of which he may be guilty.

No man can be judged a criminal until he be found guilty; nor can society take from him the public protection until it have been proved that he has violated the conditions on which it was granted. What right, then, but that of power, can authorize the punishment of a citizen so long as there remains any doubt of his guilt. This quandary is frequent. Either he is guilty, or not guilty. If guilty, he should only suffer the punishment intended by the laws, and torture becomes useless, as his confession is unnecessary. If he were not guilty, you torture the innocent; for, in the eye of the law, every man is innocent whose crime has not been verified.

Crimes are more effectually vetoed by the certainty than the severity of punishment.

The punishment of death is pernicious to society, from the example of barbarity it affords. If the passions, or the essential of war, have taught men to shed the blood of their fellow creatures, the laws, which are proposed to moderate the ferocity of mankind, should not increase it by examples of barbarity, the more horrible as this punishment is usually attended with formal pageantry. Is it not ridiculous, that the laws, which detest and punish homicide, should, in order to prevent murder, publicly commit murder themselves?

It was thought better to prevent crimes than to punish them. This is the primary principle of good legislation, which is the art of conducting men to the maximum of happiness, and to the minimum of misery, if we may apply this mathematical expression to the good and evil of life.

The fear of the laws is salutary, but the fear of men was a fruitful and incurable source of crimes

However, the cruelty of punishments and the irregularity of proceeding in criminal cases, so principal a part of the legislation and so much neglected throughout Europe, had hardly ever been called in question

A theory evolved which had some assumptions


All persons being by nature self-seeking are liable to commit crime. There was a consensus on the desirability of protecting private property, personal welfare and current distributions (power, life chances, etc.).

Free will is a psychological reality, people freely enter a social contract with the state to preserve peace and the consensus. Pleasure-Pain motivation.

The laws represent a crystallization of the moral consensus.

All people are rational.

The individual is responsible for his/her actions and is equal.

Derived assumptions:

Lawbreaking behavior is the result of the irrational acts of certain individuals, who, due to their personal inadequacies are unable to uphold the contract with the society or the state.

Social contract theorists maintain special access to the criteria needed to judge the rationality of an act. These criteria are based on the measures of utility developed by the theorists themselves.

Assumptions about punishment:

Punishment is to deter the individual from violating the interests of others. (It is the option of the state to execute this punishment since the individual freely formed the society.)

Punishments must be proportional to the interests violated by the crime. Focus is thus on the act. Punishment should not be in excess of this nor should it be used for reformation as this would encroach on the rights of the sanctity of the individual.

There should be as little law as possible, and its implementation should be delineated by due process.

Punishment should seek to reward useful activity and punish damaging activity.

Punishment should be consistently applied according to the crime: there are no mitigating circumstances or special cases. Neo-classical school allows mitigating circumstances.

Justice system of England

The criminal justice system of England in the 18th century presents an inquisitive spectacle to an observer more familiar with modern institutions. The two most striking anomalies are the institutions for prosecuting offenders and the range of punishments. Prosecution of roughly all criminal offenses was private, usually by the victim. Intermediate punishments for serious offenses were conspicuously absent. It is only a slight embellishment to say that, in the early years of the century, English courts forced only two sentences on convicted felons. Either they turned them loose or they hanged them.

England in the 18th century had no public officials analogous to either police or district attorneys. Constables were unpaid and played only a minor role in law enforcement. A victim of crime who wanted a constable to undertake any… [END OF PREVIEW]

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