Amin George Forji
Faculty of Law, Department of Public Law, University of Helsinki

The Classical Doctrine

The classical school is the brain-box behind the idea of pleasures and pains or benefits and costs as Beccaria termed it. The school grew in the late 18th century in the aftermath of the French revolution. Most classical thinking ideas were a reformulation of the philosophies of the age of enlightenment, notably the earlier writings of John Locke (1632-1704), JeanJacques Rousseau (1712-1778), Charles Louis Montesquieu (1689-1755) and Thomas Hobbes (1588-1679). With English philosopher Jeremy Bentham (1748 – 1832) and Italian philosopher Cesare Beccaria (1738 – 1794) as its forerunners; the school sought to correct what it perceived to be a barbaric system of law prevailing in Europe before 1789. It based its focus not on criminals as later did the positivists but instead on law-making and lawprocesses. Many scholars across Europe at the time shared a general sense of disillusionment with the various legal systems; seen as prejudiced, snobby, discriminatory, tyrannical and elitist. For instance, prior to 1789, most judges across Europe enjoyed uninhibited power and paid allegiance to no other institution but the “crown”.They melted out inconsistent punishments to offenders irrespective of the severity of the offence; a practice sometimes described as dependent on what the “judge ate for breakfast” At the time, both accused and convicted persons were detained at the same institutions. Conceiving criminal behavior to be as a result of cruel and excessive punishments, one of the main convictions of the classical was to the effect that criminality would be contained if the criminal justice system underwent a thorough reformation by providing fair and equal treatment to all accused offenders.

The classical doctrine sought to correct this by emphasizing that both laws and punishments must be just, equitable and non discriminatory.Given that laws are designed to coordinate human activities, it goes without saying that they must themselves first exhibit an human character. The history of the world from the perspective of Social Contract theorists can be divided into two clear periods to wit: the period before and the period after the state. In the first period, there is no government or law (state of nature). In the second, there is a contract between the subjects in nature (that is, the government and the people). According to John Locke, the raison-d’être of establishing a government was to move men away from a state of nature, given that men in the state of nature were too often judges in their own cases. A civil society was vital to guarantee peace and a common judge to settle disputes for everyone.The Classical school upheld this view that there was an unwritten social contract between every people and its rulers. Thomas Hobbes contended that the sovereigns were the beneficiaries of the “contractual authorization”, while John Locke added that the nature of the relationship between the sovereign and the people was one of trust.By entering into a social contract, people conceded that a peaceful society would be more beneficiary to their self interests. Criminal behavior on the other hand would be more costly because of the specific sanctions. The constitution and institutions of government are in place to ensure that individuals conform to the dictates of reason and justice since “the passions of men will not conform to the dictates of reason and justice, without constraint”. The premise of the classical school was to the effect that humans were essentially rational creatures whose reasoning faculty placed them far above all other animals. Thus, criminal behavior could only be best understood and tackled through the application of reason and intelligence. Criminal behavior can be contained by simply applying the tenets of human nature shared by all of us. By portraying humans as hedonistic, the classical school sought to illustrate that man’s rationality without doubt enables him to consider which courses of action are really for his self-interests.

While Beccaria focused much on the law and its effects on humans, his fellow proponent, Bentham labored on devising a universal concept of just law called utilitarianism-the greatest happiness for the greatest number of people. Bentham’s utilitarianism is so closely related to the modern concept of democracy: “government of the people, by the people and for the people.” Beccaria contended that man in his normal state was free and rational, basing his actions on costs and benefits. He posited that criminal behavior just like any other human behavior is a rational choice freely made by anyone based on “pains” and “pleasures”. It is the duty of the law to equitably match crimes with corresponding punishments. Both Beccaria and Bentham were convinced that punishment would deter criminality only if it was certain and swift, rather through long trials.

If society increased or reduced the costs or benefits, that individual would also act accordingly. The individual would for instance choose legitimate options over illegitimate alternatives where the benefits of compliance outpaced the costs of violation.

All things being equal, Beccaria contended, people would naturally follow their selfinterests, if they were left on their own. Moreover, individuals would not engage in crimes unless they are convinced that the proceeds from the crime far outweigh the resulting punishment. Beccaria was impelled to this position as a reaction to the system of law and justice that was prevalent in the 18th century across Europe. He came to believe that most criminal justice agencies and the laws in place encouraged abusive practices caused by the enjoyment of too much freedom in dealing with criminals.As a remedy, he advocated for a routine control of governmental establishments, justice and equality before the law and most importantly, popular participation in the shaping of institutions. Beccaria’s objection of the status quo earned him an enviable recognition as one of the most distinguished philosophers of the Age of Enlightenment, and its intellectual development. He forcefully posited that it was crucial for punishment not to exceed the barest minimum required to guarantee public peace and order.56Accordingly, he saw capital punishment, secret trials and torture as immoral and unjustifiable, arguing that not only were they stupid and ineffective but savage as well.

Bentham was moved by Beccaria’s proposition to the extent that he made a slight linguistic adjustment to his costs and benefits concepts opting for more subtle-sounding adjectives namely, pleasures and pains. He also solicited for the implementation of Beccaria’s ideas in England in 1780, which at the time had at least 300 different offenses warranting the death penalty. Like Beccaria, Bentham believed that no one needed to be killed for a serious sin. Instead, the law should be reformed to prevent irrational behaviors. His Utilitarian theory as afore-noted is grounded on the idea that the aim of the individual and the legislator in the conduct of the society should be to achieve the greatest happiness for the masses.Individuals, he contended are naturally prone to the probabilities of present and future pains and pleasures. In other words, they weigh all odds and decide on whether or not to commit crimes. Consequently, punishment should be made to surpass the pleasures of gain from a criminal act.