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Throughout the 18th Century a growing number of writers began to question the natural laws of society. These were the ideas that individuals were born with total freedom and as society developed people became dependent on others. Individuals then had to give up levels of personal freedom in order to benefit from living with others, freedom had to be protected by laws, although laws restricted freedom so they had to be kept to a minimum. The idea is that people can behave in any way they choose as long as there is no law for that behaviour. This is what is known as the social contract
Cesare Beccaria viewed the social contract, as being selfish as it's main idea wasn't to help people's fellow citizens. Believing law should be scarce as possible, and prohibiting actions would increase rather than decrease crime. Criminal law shouldn't discard moral values but should suit the requirements of a particular society. Beccaria suggests there should be a code of law, using the social contract to provide citizens with information showing how their freedom is protected.
Beccaria discusses administration of criminal justice, in which he believes the rights of offenders are protected and torture is prohibited. If the victim and accused are in different classes the jury should be equally from both. Importantly punishments should be equal to offences, to defer criminals from re-offending. Beccaria argued punishment should not reflect the sin of the act, that is for God. Beccaria strongly disliked the death penalty, believing the duration of punishments are far more effective. Becerria's work challenged the criminal justice system and brought changes into Europe. In Britain torture was practically non-existent by 18thC, although it had one of the lowest rates of violent crime it had one of the highest rates of capital punishment. Becerria?s work provided a basis for Jeremy Bentham (1748-1832) who believed in utilitarianism, believing in punishments like the death penalty if it provided happiness for the greatest number of people. Bentham believed society is based on ideas of pain and pleasure. If crime is committed and the punishment is more painful then the amount of pleasure received this will prevent the crime, this was Benthem?s 'moral formula'. Bentham argues that condemning peoples actions is more effective then physically harming them.
Beccaria and Bentham applied freewill to the criminal justice system, which had formally been religiously determined. Both writers don't differentiate between offenders and non-offenders. Although Bentham doesn?t completely agree with Beccaria on the issue of the death penalty being abolished Bentham does believe it is not the best form of punishment.
Geis 1960 criticises Benthem's work for not viewing criminals as individualistic human beings. Beccaria and Benthem's reform into the criminal justice system meant capital punishment declined during 19thC Britain. Beccaria?s principles led to the French code 1791, this classed everyone as not similar in court of law i.e. the sane were different to the insane. In France at that time there were no annual statistics, as these developed new information suggested Beccaria was incorrect, ideas that people receiving proportionate prompt punishment wouldn't re-offend were false, showing that classical punishment policies began to fail. From this Positivism was born.
Andre Guerry (1802-1866) investigated if poverty is linked to crime. Guerry found this to be untrue as the wealthiest region in France had the highest rate of property crime. Guerry argued this was because wealthier areas have more to steal. Guerry also looked at education and crime by using reading/writing abilities of young men from different areas in France. His findings were, areas with high education levels had high violent crime levels and vice versa. This information proved previous analogies incorrect.
Adolphe Quatelet (1796-1874) analysed Guerry's argument, using French stats comparing age, gender, etc. Finding young poor males most likely to offend in any circumstance. Although crime was higher in wealthy areas the poor still mostly offended. Guerry and Quatelet suggest these patterns maybe due to opportunities as inequality between wealth and poverty in one area can lead to temptation. Poor areas have less crime as long as people can satisfy there basic needs. Quatelet found that increased education levels don?t mean less crime but less violent crime.
Guerry and Quatelet's arguments are deterministic, they take on classicist views and improve them. Another positivist agreeing with this view is Cesare Lombrosso (1835-1909) who believes criminals are biological throwbacks, i.e. the atavistic man. This is shown in Charles Darwin's 'Origin of the species'. The basic idea that criminals are primitive versions of man with inbred needs to offend rather than needs for wealth.
I conclude the main difference between classicist and positivists is classicists look at punishment of crime and positivists look at causes of crime, this could be due to the fact that classicists lived in a less modernised world to positivists and therefore were less able to investigate such views as they did not have the sufficient means to.
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