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Introduction

The problem of the understanding of when a crime is a crime has


produced so many schools of thought to address what comprise it. One
of them is the positivist theory or realistic theory. It has been brought
about to address the limitation of the classical and utilitarian theory in
criminal law.

The significance of this stud is that it tries to present this


material as a part of the history of an idea. It is such a broad and
complex issue that a deep understanding of the theorys evolution is
vital to the reader for a deep understanding of the underlying
principles, the biological makeup and the social impact.

The superficial assertion that crime is merely a choice has


brought about to the contradicting theory of positivism, that the
commission of a crime is not a choice but it is social and natural
phenomenon, that it would be committed even if it is contrary to ones
volition. That such social factors, biological factors, accidental or
uncontrollable factors are essential in explaining why this theory has
come about.

Positivist (or Realistic) Theory


Man is subdued occasionally by a strange and morbid
phenomenon which constrains him to do wrong, in spite of contrary to
his volition. In this theory, crime is essentially a social and natural
phenomenon. The primary purpose of which is the reformation;
prevention/ correction. Basis of criminal liability: The sum of the social,
natural and economic phenomena to which the actor is exposed.
In the early 1800s, public executions used to be commonplace.
The idea was that society would be afraid of the public punishment
that came with wrongdoing and adjust their actions. This reasoning for
punishment aligns with a view known as utilitarianism. Utilitarianism is
a theory that one is motivated by pleasure and the fear of pain, so
punishments can be used as a deterrent to commit crimes. In the mid-
1800s, ideas about criminals and punishment started to evolve.
Positivist criminology began to emerge, which is the study of criminal
behavior based upon external factors.

Positivist Theory
The primary idea behind positivist criminology is that criminals
are born as such and not made into criminals; in other words, it is the
nature of the person, not nurture, that results in criminal propensities.
Moreover, the positive criminologist does not usually examine the role
of free will in criminal activity.
One famous positive criminologist was Cesare Lombroso. In the
mid-1800s, he studied cadavers and looked for physiological reasons
for criminal behavior. Lombroso distinguished between different types
of criminals, including the born criminal and the criminaloid. Lombroso
issued studies indicating that born criminals possessed similar facial
features, which included large canine teeth, large jaws, low-sloping
foreheads, high cheekbones and more. Criminaloids, on the other
hand, had no physical characteristics of a born criminal but morphed
into a criminal during their lives due to environmental factors.
Criminaloids supposedly committed less severe crimes than other
types of criminals.

In the 1960s and 1970s, positive criminology theories focused on


abnormal chromosomes giving rise to criminal propensities. One
theory, known as the XYY theory, indicated that violent males had an
extra Y chromosome, which resulted in likelihood toward crime.
However, this theory was later disproved.
In the 1990s, leading psychologist Philippe Rushton provided a
new theory. His theory advanced the idea that East Asians
demonstrated a bigger brain size, increased intelligence, decreased
rates of maturation and increased law-abidingness when compared to
Europeans or Africans.

The difference between classical and positivist understanding

Published: 23, March 2015

White & Hanes, (2008) the growth of ancient theory


demonstrates that classical and positivist schools of criminology are a
current approach to dealing with criminal acts. The main idea of the
two key schools is to create sufficient approaches to stop deviant
behaviour that are considered to be most dangerous to society.
Although the purposes of both approaches added to the reasons of
criminal activities, both the schools present opposite philosophies to
explain deviant behaviour White et al., (2008). Throughout this essay
we will be discussing the key differences between classical and
positivist understanding of crime in relation to the ideas suggested by
the theorists of each approach.
The classical school of criminology was invented in the
eighteenth century during the enlightenment era (White et al., 2008).
(Walters & Bradley, 2005) states that nasty punishments which
occurred in Europe were out-shadowed by the introduction of this idea
because it recognized an unexpected civil change, and hence providing
an important explanation for the criminal code in western civilizations.
The key concern of the classical theory was therefore to increase the
unfair disputes linked with the criminal justice system explains
Gottfredson & Hirschi, (1990). Introduction of classical theory also
forced the rule of law and individual dignity, thus criminals were no
longer exposed to retribution without originally being convicted by a
legal judge in court (Walters et al., 2005). Cesare Beccaria, usually
known today as the father of classical theory, along with well-known
theorist Jeremy Bentham, was the legal reformers to begin this justice
system in which all members of the social order were offered equal
rights Burke, (2005). In his book, 'On Crimes and Punishment', Beccaria
demonstrated the main significance of humanising and rationalising
law in order to make righteousness more realistic (Beccaria, 1767).
Beccaria (1767) not only suggested the removal of judicial discretion,
but he also renowned the clarification of law by the judiciary provoked
discretion (Beccaria, 1767). Additionally, the other important donor to
classical theory, Jeremy Bentham, gave rise to the idea of
'utilitarianism' - "the greatest good to the greatest number" (Siegel, L.
2004, White et al., 2008). By this theory, he explained that lawmaking
must aim to please the majority of individuals in society (White et al.,
2008).

In comparison, positivism understanding of crime was introduced


throughout the nineteenth century in Europe. The main theorists
behind this school were Cesare Lombroso, Raffaele, and Enrico Ferri
states Garofalo Gottfredson et al., (1990). White et al., (2008), explains
that positivism developed throughout an era of social and political
turmoil in Italy White et al., (2008). At the same time the main idea of
classicism was to change the legal system, the key purpose of
positivist school was to apply a scientific technique to control
criminological explanations of crime (Burke, 2005). As an outcome,
positivist theorists were concerned with the sociological, psychological,
and biological where the major causes of criminal behaviour (Walter et
al., 2005). (White et al., 2008) states that the creator of positivist
theory, Cesare Lombroso, recognized that offenders express abnormal
behaviour due to their heritable makeup, and thus established a
biological difference among non-criminals and criminals. Lombroso was
influenced by Darwin's theory of evolution, and so believed that
criminals had bodily characteristics that were indicators of an atavistic
person i.e. a person who is similar to physical features of primal
ancestry (Moyer, 2001). As an outcome, Lombroso suggested that
criminals were born, and not impacted by ecological/environmental
and social factors (Walter al., 2005). The second modification of
positivism is the mental/psychological influence, that is based on the
understanding that human mind is accountable for the movements of
crime thereby this develops the idea of 'criminal mind' (Moyer, 2001).
Additionally, the sociological concept of positivism clarifies that crime
is typically a socially assembled occurrence that requires to be
controlled in a given society explains Gottfredson et al., (1990). Enrico
Ferri was a scholar of Lombroso, who examined social and economic
influences that inspired criminals (Gottfredson et al., 1990). His goal
was to increase social conditions and defend society from criminal
predation (White et al., 2008). Raffaele Garofalo was the other theorist
of positivist school who suggested criminals as a virus in society, and
thus announced the idea of life locking up and removal of criminal
(Gottfredson et al., 1990).

The theory of classicism implemented the idea that individuals


are free-will, and so have the capability to make choices between the
different types of behaviour (White et al., 2008). This idea endorses an
important view that if an individual is free to choose their individual
actions, they must also admit the significance of their choices (Walter
al., 2005). Walters and Bradley (2005) clarified that the free-will of an
individual allows them to control the benefits and risks of committing a
crime (Walter al., 2005). Thus, criminals freely select to commit a
crime with full knowledge concerning the cost and benefits of their
behaviour. Rational choice theory is also an important principle of
classicism that intensely highlights the concept of free-will and human
rationality (Gottfredson et al., 1990). This idea clarifies that people
choose their behaviour based on useful calculation of pain and
pleasure i.e. offenders select behaviours that offer happiness and stay
away from pain (Burke, 2005). Equally, positivism is based on
deterministic theories which clarify that all events are caused by inner
or outer factors that are beyond a person's control (Gottfredson et al.,
1990). As an outcome, this removes the view of free-will and concludes
that the offender had no choice prior to committing a certain crime
(Moyer, 2001). Furthermore, positivist school of criminology stresses
that behaviour is determined by sociological, psychological, and
biological factors which are also beyond an individual's control; hence
this concludes that crime is not a perceived as a choice (Gibbons,
1979).

As stated before, classical theory observed crime as a choice;


therefore, the criminals had to accept the responsibilities of
punishment (Walter al., 2005). As a result, the inevitability rather than
the brutality of punishment imposed a deterrent effect among crooks
in classicism school (Gottfredson et al., 1990). This reduced the odds of
criminals to reoffend. According to classical perspective, sentences
were applied alike by the law to all offenders who committed the
similar crime. Also, classical theorists debated that criminals did not
need to be killed for a serious crimes, and thus believed that people
would not commit a crime of the punishment was certain and swift
(Mcshane & Williams, 2008). In contrast, positivists discussed that
crime was not a choice, so criminals were not held accountable for
their criminal actions (Burke, 2005). Additionally, the positivist school
highlighted that because crime was a form a disease, criminals had to
be treated, rather than disciplined by law (White et al., 2008). Yet, in
an event of a born criminal, removal and continuous imprisonment was
considered the practical option (White et al., 2008). Also, because
different criminals were driven by different factors, there had to be a
variety of variable treatments offered to the offenders (Walters et al.,
2005). Therefore, positivism showed a broader range of crime response
and presented unknown sentences which enabled criminals to make
rehabilitative development; as oppose to classical theory, which mainly
trusted on fixed and determinant sentences (White et al., 2008).
Classicists perceived no major difference between criminals and
non-criminals. This school observed all individuals as equally when it
came to the amount of committing a crime under a specific situation
(White et al., 2008). But, there was a line of distinction drawn between
criminals and non-criminals in positivists school (Walters et al., 2005).
Theorizers of this insight debated that there was a variation between
normal and deviant behaviour, and thereby crimes were committed by
offenders who were higher class in one way or the other (White et al.,
2008). Positivists acknowledged criminals by numerous physical
characteristics. For instance Lombroso introduced physical stigmata's
that described a 'born' criminal (Gibbons, 1979). Criminals were
therefore described to have an irregular head shape, a receding chin,
large ears, a low forehead, jutting teeth, protruding jaw, abnormal
large amount of figures and deformities of the eye (white et al.. 2008,
Gottfredson et al., 1990). Furthermore, Lombroso presented the idea
that offenders could be distinguished from non-criminals by atavism.
This was linked to the idea that criminals have not completely evolved
from apes hence, they constitute a lower form of life (Moyer, 2001).

Although these theories have so many advantages, at the same


time it also has many disadvantages. These disadvantages may be
very little but it also has an impact on the outcome of the theory.
Howard Becker challenged the positivist theory and argued the face
that the "scientific inquiry" must firstly agree to qualitive statement
about crime (Becker, 1963). He also argues that scientists do not
bother looking at the labelling process of criminals, the fact that
different social groups define criminality to be different, and scientists
must also acknowledge the morals of the social groups making the
authority to punish criminals in that society, so far positivism is purely
dependant on crime stats argues Howard Becker

To conclude we have seen two major schools which has had a


great impact in the criminology department, these school have been
invented to prevent crime from occurring and to identify criminals and
no vn-criminals. The two schools which we have seen are; Classical
theory was introduced in the 18th century during the enlightenment
period by the theorist Cesare Becarria and Jeremy Bentham. Prior to
the introduction of classical criminology, the law system was brutal and
unfair; thus, the main focus of classicist was to legalise the justice
department and create the same lay system for the general public
(White et al., 2008). The concept was not interested in how and why
crime were committed rather just a perfect justice system. This also
included the concept of free-will means that people had the right to do
whatever they want. Gottfredson et al., (1990) on the other hand
positivist school which was introduced in the 19th century by Cesare
Lombroso, Raffael Garofalo and Enrico Ferri. The key idea behind this
theory was to use scientific methods to understand criminality and
crime. This theory believed that behaviour was cause by psychological,
biological and social factor which are out of our control. The major
difference between the two theories are that classical school is mainly
based on free will and suggests that crime as a choice, whereas
positivism criminology argues that crime is not a choice.

Assessing The Strengths And Weaknesses Of Criminology


Criminology Essay

The classical school of criminology was developed in the


eighteenth century, where classical thinking emerged in response to
the cruel forms of punishment that dominated at the time. It is
considered that writers such as Montesquieu and Voltaire encouraged
perhaps the emergence of this new 'classical' thinking, by becoming
involved in campaigns for more enlightened approaches to be taken
towards crime and the punishment given by the justice systems at the
time. Also the development of society craved new forms of legal
regulation due to the fact that there needed to be predictability in the
system, as technology and properties in particular needed legal
protection and workers needed to be disciplined in a consistent way.

There were two main contributors to this theory of criminology


and they were Jeremy Bentham and Cesare de Beccaria. They are seen
as the most important enlightenment thinkers in the area of 'classical'
thinking and are considered the founding fathers of the classical school
of criminology. They both sought to reduce the harshness of eighteenth
century judicial systems, even though coming from different
philosophical stances.

Bentham's contribution to 'classical' theory is based on the fact


that he was a utilitarian, interested in the happiness and well being of
the population and therefore believing that punishment, in the form of
the infliction of pain, should always be justified in terms of a greater
good. At the heart of Bentham's writing was the idea that human
behaviour is directed at maximising pleasure and minimising pain, (the
pleasure-pain principle).

Bentham believed that crime was committed on the outset, by


individuals who seek to gain excitement, money, sex or anything of
value to the individual.

Beccaria (1764/1963: 93) stated that; 'It is better to prevent crimes


than to punish them'.

This is at the heart of the classical school of criminology. Beccaria


believed that laws needed to be put into place in order to make
punishments consistent and in line with the crime. He believed that
crime prevention in its effectiveness is down to three main ideas, these
being the certainty of the crime and how likely it is to happened, the
celerity of the crime and how quickly the punishment is inflicted and
also the severity of the crime, and how much pain is inflicted. Beccaria
thought that the severity of the penalties given should be
proportionate to the crime committed and no more than what is
necessary in order to deter the offender and others from committing
further crimes.

Classical thinking says that criminals make a rational choice, and


choose to do criminal acts due to maximum pleasure and minimum
pain. The classical school says criminals are rational, they weigh up the
costs and therefore we should create deterrents which slightly
outweigh what would be gained from the crime. This is the reason
behind the death penalty being viewed by classical thinkers such as
Beccaria and Bentham as pointless, because there would be no
deterrent. However when considering manslaughter, as Bentham also
believes, if the severity of the punishment should slightly outweigh the
crime then surely capital punishment should be used, there doesn't
seem to be any stronger a deterrent to other criminals thinking of
undertaking the same criminal behaviour, than seeing another
eradicated due to their actions.

Classical thinking has had a significant impact on criminological


thinking in general and perhaps a greater impact on criminal justice
practise. In Europe and America the idea of punishments being
appropriate to the nature of the crime has become a foundation for
modern criminal justice systems.

Since the introduction of the classical school of criminology and


classical thinking, the use of capital punishment, torture and corporal
punishment has declined. Neither Beccaria nor Bentham believed in
the death penalty, apart from, Bentham argued, in the case of murder.

The second half of the eighteenth and nineteenth centuries also


saw the establishment and growth of the prison, as a major system of
punishment, the idea and concept of prison was to take punishment
away from the body and instead punish the mind and soul, and these
are the keys to changing a person's outlook and views of their criminal
behaviours.

Many elements of classical ideas are very useful in modern


society and these show the strengths that the theory does have.
Deterrence continues to underlie all judicial systems and indeed
underpinned the principles of the first commissioners of Sir Robert
Peel, in the creation of the Metropolitan police. Prisons are also used as
major deterrents and also to try and reduce rates of crime.
However a great weakness of the classical school of criminology
is, the idea stemming from classical thinking that all criminals are
rational is not generalisable to the whole population nor is it entirely
valid, due to the fact that there may be biological factors stopping an
individual from being able to think and behave rationally. Therefore it
may not be the particular choice of the individual as they may have
been born that way; they may not have the ability to make a rational
decision due to a mental illness such as schizophrenia. They may be
disorientated or even drugged which affects the brain functioning and
therefore any behaviours, resulting in an individual becoming irrational.
Also, if people act due to principles of rationality and free will then why
is it that the poor are predominating in the criminal justice system,
classical thought doesn't include factors of necessity in order to
survive. As Jeffrey Reiman (1979) said; "the rich get richer and the poor
get prison"

White and Haines (2004) said that the classical school of


criminology has 3 main challenges to it. Firstly; how to make such
ideas serve the interests of justice and equality when faced with a
particular defendant in court. (Not all criminals appear to be acting
rationally and of free will) Secondly; that for criminal justice
bureaucracies such as the police, growing efficiency may not always be
compatible with an emphasis on equal justice, as their gain is to
decrease crime rates. Thirdly a power issue, the rationalisation of the
legal system potentially means some reduction in their power, which
may backfire in terms of being a deterrent.

In late 19th century the classical school came under criticism by


a form of scientific criminology which emerged due to Darwin's great
works being published between 1850 and 1870, this therefore had a
profound effect on scientific thought and individuals views of human
behaviour.
Classicism defines the main object of study as the offence. The
nature of the offender was defined as being free-willed, rational,
calculating and normal. The classical thinking response to the crime
was to give punishment that is proportionate to the offence.

The Positivist school of criminology however opposes this


classical school of thinking, positivism states that the object of study is
the offender, and that the nature of the offender is driven by biological,
psychological and pathological influences. Their response to the crime
is that of giving a treatment of an indeterminate length, depending on
individual circumstances.

Unlike classicism, positivism views criminal behaviour as irrational and


perhaps due to a problem (biological, physical or psychological) that an
individual has, therefore they are partially relieved of the crime they
committed.

Cesare Lombroso is related to much positivist thinking, as a


psychiatrist he looked at criminals as being throwbacks to a more
primitive stage of human development, he compared physical features
of criminals and related them to more primitive stages of mankind and
formed a prediction based on measurements of skulls and main
physical features, of how certain criminals look. Lombroso's thinking
clashed with that of classical thinking, saying that criminals were born
not made, and they are not rational as they reproduce thoughts similar
to that of inferior humanity.

The differences between the thinking behind both the classical


school of criminology and the positivist school of criminology highlight
the strengths and weaknesses that are associated with both. The
classical school has much less biological fact and figures backing up its
views, however it has proven successful in reducing crime rates and in
providing a deterrent and a way in which to successfully contain
individuals who rebel against the system.
Unlike positivism which doesn't have any form of punishment,
just a form of treatment, the classical school shows criminals that they
cannot behave in certain ways in order to maximise their pleasure and
minimise pain if it involves breaking the law, it does this successfully
because the punishment that is given is more than that of the pleasure
that they would receive. Therefore as rational thinkers, individuals
contemplating criminal behaviours would not do so due to the laws set
in place to deter the behaviour.

However the main weakness of the classical school of


criminological thinking is that it considers all criminals to be rational
and make decisions by free will, but not all individuals are rational and
not all their behaviours are free, as if an individual had a mental illness
or a physical defect, this may totally change the way in which they act
and think.

The social construction of crime has changed over time; feudal and
religious influences have changed, and affected the criminological
theory used.

When the Classical school developed it was in a time of major


reform in penology, there were many legal reforms at the time due to
the French revolution and the legal system was developed in the united
states, which would have had an effect on the united kingdom making
an increased effort to set laws on crime in stone.

As modernity has progressed so has the development of the


judicial systems, if positivism was used as the main criminological
thinking then these systems wouldn't exist because positivism uses
treatments to the criminal in order to solve crime. This could be why
the classical school of criminology has been so influential and still is,
because it protects various organizations set out to remove crime and
it also provides a good theoretical basis on which more recent theories
have been developed.
Another interesting story is that of a neuroscientist, James Fallon,
a pioneer in neuroscience, who uncovers a dark secret about the brain.
James Fallon was always fascinated about the brain. For nearly 20
years, the neuroscientist at the University of California-Irvine has
studied the brains of psychopaths. He studies the biological basis for
behavior, and one of his specialties is to try to figure out how a killer's
brain differs from yours and mine. Fallon made a startling discovery
upon investigation of his own ancestry. One of his direct great-
grandfathers, Thomas Cornell, was hanged in 1667 for murdering his
mother. That line of Cornells produced seven other alleged murderers,
including Lizzy Borden. "Cousin Lizzy," as Fallon wryly calls her, was
accused (and controversially acquitted) of killing her father and
1
stepmother with an ax in Fall River, Mass., in 1882.

After learning his violent family history, he examined the images


and compared them with the brains of psychopaths and investigated
his own family. His wife's scan was normal. His mother: normal. His
siblings: normal. His children: normal. Then he compared his, and was
startled to discover that the PET scan of his orbital cortex was very
similar to that of the killers.

Fallon cautions that this is a young field. Still, he says the


evidence is accumulating that some people's brains predispose them
toward violence and that psychopathic tendencies may be passed
down from one generation to another.

Scientists are just beginning to study this area of the brain


much less the brains of criminals. They believe that brain patterns and
the genetic makeup of the brain is not enough to make anyone a
psychopath and that you need a third ingredient: abuse or violence in
ones childhood.

CONCLUSION

1 Barbara Bradley Hagerty, Inside the Criminal Brain, NPR Morning


Edition, U.S.A., June 29, 2010
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