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Chapter 3

At the end of this chapter the student should be able to:

• Understand the history of punishment and

corrections
• Recognize the principles of philosophical approach

CESARE LOMBROSO
In his view on crime, Lombroso called for scientific
explanations, focused on internal biological factors, and
believed that people who engage in crime are throwbacks.

Cesare Lombroso was born in Venice,

Lombroso was one of the first
Italy, in 1835. Educated in medicine
theorists who attempted to and psychiatry, he became a professor
scientifically study criminal of criminal anthropology at the
behavior. University of Turin in 1906. In his
book The Criminal Man, published in
1876, Lombroso explained criminal behavior on the basis of biological
characteristics and heredity. Using various physiological and cranial
measurements of known criminals, Lombroso developed the theory that
certain persons who engage in criminal behavior are “born criminals.”
Lombroso believed that criminals could be distinguished from
noncriminal by a variety of what he termed physical stigmata, such as
a long lower jaw, flattened nose, and long, apelike arms. The stigmata
themselves did not cause criminal behavior; rather they were visible
indicators of a personality type that was, in essence, a primitive
atavism, a throwback on the Darwinian scale of human evolution.

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Lombroso’s approach “suggested that criminals are distinguished
from noncriminal by the manifestation of multiple physical anomalies,
which are of atavistic or degenerative origin. The concept of atavism
(from Latin atavus, ancestor) postulated a reversion to a primitive or
subhuman type of man, characterized physically by a variety of
inferior morphological features reminiscent of apes and lower
primates, occurring in the more simian fossil men and, to some extent,
preserved in modern ‘savages.’” In addition, Lombroso’s theory implied
that the “mentality of atavistic individuals is that of primitive man,
that these are biological ‘throwbacks’ to an earlier stage of
evolution, and that the behaviour of these ‘throwbacks’ will
inevitably be contrary to the rules and expectations of modern
civilized society.”
Although Lombroso is considered the father of criminology, there
are many criticisms of and misconceptions about his ideas. Many
scholars, including Lombroso’s most ardent advocates, criticized his

Lombroso’s Study of a Criminal’s Brain

Lombroso was unhappy with the abstract, judicial methods of studying
crime in his day. He wanted to apply the experimental method in studying
the differences between criminals and noncriminal. He did his research by
studying criminals in Italian prisons, where he became acquainted with a
famous bandit named Vilella. When Vilella died and Lombroso did a
postmortem examination, he found a distinct depression at the base of the
skull, a “characteristic found in inferior animals, and a depression correlated
with an overdevelopment of the vermis, known in birds as the middle
cerebellum.”1 In reviewing this moment in his life, Lombroso later stated:
“This was not merely an idea, but a revelation. At the sight of that skull, I
seemed to see all of a sudden, lighted up as a vast plain under a flaming sky,
the problem of the nature of the criminal—an atavistic being who reproduces
in his person the ferocious instincts of primitive humanity and the inferior
animals. Thus, were explained anatomically the enormous jaws, high
cheekbones, prominent superciliary arches, solitary lines in the
palms, extreme size of the orbits, handle-shaped or sessile ears found in
criminals, savages, and apes, insensibility to pain, extremely acute sight,
tattooing, excessive idleness, love of orgies, and the irresistible craving for evil
for its own sake, the desire not only to extinguish life in the victim, but to
mutilate the corpse, tear its flesh, and drink its blood.”2

M. E. Wolfgang, “Cesare Lombroso,” in Pioneers in Criminology, H. Mannheim,

ed., 2nd ed., Montclair, NJ: Patterson Smith, 1972, p. 248.
C. Lombroso, from his opening speech at the Sixth Congress of Criminal
Anthropology, Turin, Italy, April 1906; quoted in ibid.

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methods of research, such as his sources of information, his use of
statistics, and the absence of adequate control groups in his
experiments (although he did challenge his opponents to test his
research and ideas by a controlled investigation of criminals and
noncriminal).
Lombroso not only focused on the “born criminal,” atavism, and
degeneracy; as a positivist, he also expressed concern for factors
such as the social and physical environment of the offender. In Crime,
Its Causes and Remedies (1899), he reported that economic and
political developments give rise to the appearance of abnormalities
that induce social reactions. In discussing socioeconomic factors, he
emphasized a mutual interactive relationship between heredity and
environment and, in other written works, stressed environmental
conditions as causing or having an effect on criminality. For example,
he discussed the influences of poverty on crime, the relationship
between the cost of food and crimes against property and person, and
the relationship between alcohol and crime.
Lombroso also investigated the etiology (or origins) of crime. He used
a wide variety of research techniques and procedures, ranging from
historical and clinical methods to anthropometric and statistical
techniques. These were important strides in the study of crime;
nevertheless, Lombroso’s research methods would not be accepted today
as scientific.

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ENRICO FERRI
Ferri coined the term “born criminal” and developed a fivefold
scientific classification of criminals.

Enrico Ferri was born in Mantua, Italy, in 1856. His dissertation,

published in 1878, was entitled Criminal Sociology. It was in its
fifth edition when Ferri died in 1929. He was, for many decades, an
acknowledged leader of the positivist school of criminology. Ferri
studied under Lombroso at the University of Turin because of his
belief that, “in order to formulate principles concerning crimes,
penalties and criminals, it is first necessary to study... criminals
and prisons, since facts should precede theories.”
Enrico Ferri, was a positivist who
In 1880, Lombroso began to edit his
developed a scientific classification periodical, the Archive of Psychiatry. In
of criminals and focused on the its first volume, Ferri contributed a
causes of crime, criminal sociology, paper on the relationship between
social reform, and effective criminal criminal anthropology and criminal law.
justice. In this paper, Ferri first coined the
term “born criminal,” to designate
Lombroso’s atavistic type of criminal, and developed one of his basic
ideas: a scientific classification of criminals.31 Ferri’s
classification included the following:

✓ The born or instinctive criminal, who carries from birth, through

unfortunate heredity from his progenitors,...a reduced resistance
to criminal stimuli and also an evident and precocious propensity
to crime
✓ The insane criminal, affected by a clinically identified mental
disease or by a neuropsychopathic condition which groups him with
the mentally diseased
✓ The passional criminal, who, in two varieties, the criminal
through passion (a prolonged and chronic mental state), or
through emotion (explosive and unexpected mental state),
represents a type at the opposite pole from the criminal due to
congenital tendencies
✓ The occasional criminal who constitutes the majority of
lawbreakers and is the product of family and social milieu more
than of abnormal personal physiomental conditions
✓ The habitual criminal, or rather, the criminal by acquired habit,
who is mostly a product of the social environment in which, due
to abandonment by his family, lack of education, poverty, [and]
bad companions..., already in his childhood begins as an
occasional offender.

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Ferri carefully pointed out that not every criminal would fit
into his classification system, nor would criminals in daily life
appear so well defined as the system suggested. Classes of criminals
do not exist in nature, according to Ferri. However, they are a
necessary “instrument by which the human mind can better understand
the

Ferri Believed in Social Reform

Ferri’s contributions to the etiology of criminal conduct were “incidental
means for achieving a greater understanding of the course which the
reformation of criminal justice should take.” That is, Ferri was basically a social
reformer. He desired to achieve a “demonstrably effective criminal justice,
which would afford maximum protection or defence of society against the
criminal.” In his writings, Ferri examined many crime-preventive measures, or,
as he termed them, “substitutes for punishments,” such as “free trade,
abolition of monopolies, inexpensive workmen’s dwellings, public savings
banks, better street lighting, birth control, [and] freedom of marriage and
divorce.” These preventive measures were very much in line with his political
theory, which was that “the state is the principal instrument through which
better conditions are to be attained.” Ferri was the chief architect of the
positivist school, which stood in clear opposition to the classical school. Ferri
felt that a positivist perspective was necessary to “put a stop to the
exaggerated individualism in favour of the criminal in order to obtain a greater
respect for the rights of honest people who constitute the great majority.”

multiform reality of things.” Ferri expressed interest in Lombroso’s

ideas of the basic biological causation of criminal behavior, but he
stressed the importance and interrelatedness of social, economic, and
political factors as well. In Criminal Sociology, Ferri presented his
original thesis on the causes of crime, which centered on the
following factors:

• physical (race, climate, geographic location, seasonal effects,

temperature, etc.)
• anthropological (age, sex, somatic [body] conditions,
psychological conditions, etc.)
• social (density of populations, customs, religion, organization
of government, economic and industrial conditions, etc.).

For Ferri, the positivist school cultivated a “science of

criminality and of a social defence against it.” This science involved
“an individual fact (somatopsychological condition of the offender) by
anthropology, psychology, and criminal psychopathology; and a social
fact (physical and social environmental conditions) by criminal
statistics, monographic studies, and comparative ethnographic studies

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for the purpose of systematizing
social defence measures (a) of a
Ferri developed the field of
preventive nature, either indirect or criminal sociology and was the
remote (through ‘penal substitutes’) chief architect of the positivist
or direct or proximate (by the police); school of criminology.
or (b) of a repressive nature through
criminal law and procedure, techniques of prison treatment, and
aftercare.” Ferri called this science criminal sociology.

References:

• http://www.ablongman.com/html/productinfo/glick/images/61
832_CH03_058-085-r.pdf

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Chapter 2

At the end of this chapter the student should be able to:

• describe Jeremy Bentham’s ideas of utilitarianism and

the “greatest happiness,” and his moral calculus;
• Recognize the principles of philosophical approach

GALILEO GALILEI
(1564-1642) is considered the father of modern science and made
major contributions to the fields of physics, astronomy, cosmology,
mathematics and philosophy.

Galileo invented an improved telescope that let him observe and describe
the moons of Jupiter, the rings of Saturn, the phases of Venus, sunspots
and the rugged lunar surface. His flair for self-promotion earned him
powerful friends among Italy’s ruling elite and enemies among the
Catholic Church’s leaders. Galileo’s advocacy of a heliocentric universe
brought him before religious authorities in 1616 and again in 1633, when
he was forced to recant and placed under house arrest for the rest of
his life.

Galileo’s Early Life, Education and Experiments

Galileo Galilei was born in Pisa in 1564, the first of six

children of Vincenzo Galilei, a musician and scholar. In 1581 he
entered the University of Pisa at age 16 to study medicine, but was
soon sidetracked by mathematics.

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From 1589 to 1610, Galileo was chair of mathematics at the
universities of Pisa and then Padua. During those years he performed
the experiments with falling bodies that made his most significant
contribution to physics.
Galileo had three children with Marina Gamba, whom he never
married: Two daughters, Virginia (Later “Sister Maria Celeste”) and
Livia Galilei, and a son, Vincenzo Gamba. Despite his own later
troubles with the Catholic Church, both of Galileo’s daughters became
nuns in a convent near Florence.

Galileo, Telescopes and the Medici Court

In 1609 Galileo built his first telescope,

improving upon a Dutch design. In January of 1610 he
discovered four new “stars” orbiting Jupiter—the
planet’s four largest moons. He quickly published a
short treatise outlining his discoveries, “Siderius
Nuncius” (“The Starry Messenger”), which also
contained observations of the moon’s surface and
descriptions of a multitude of new stars in the Milky
Way. In an attempt to gain favor with the powerful
grand duke of Tuscany, Cosimo II de Medici, he
suggested Jupiter’s moons be called the “Medician
Stars.”
“The Starry Messenger” made Galileo a celebrity in Italy. Cosimo
II appointed him mathematician and philosopher to the Medicis, offering
him a platform for proclaiming his theories and ridiculing his opponents.
Galileo’s observations contradicted the Aristotelian view of the
universe, then widely accepted by both scientists and theologians. The
moon’s rugged surface went against the idea of heavenly perfection, and
the orbits of the Medician stars violated the geocentric notion that the
heavens revolved around Earth.

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Galileo Galilei’s Trial

In 1616 the Catholic Church placed Nicholas

Copernicus’s “De Revolutionibus,” the first
modern scientific argument for a heliocentric
(sun-centered) universe, on its index of
banned books. Pope Paul V summoned Galileo to
Rome and told him he could no longer support
Copernicus publicly.
In 1632 Galileo published his “Dialogue
Concerning the Two Chief World Systems,” which
supposedly presented arguments for both sides of the heliocentrism
debate. His attempt at balance fooled no one, and it especially didn’t
help that his advocate for geocentrism was named “Simplicius.”
Galileo was summoned before the Roman Inquisition in 1633. At
first, he denied that he had advocated heliocentrism, but later he said
he had only done so unintentionally. Galileo was convicted of “vehement
suspicion of heresy” and under threat of torture forced to express sorrow
and curse his errors.
Nearly 70 at the time of his
trial, Galileo lived his last nine
years under comfortable house
arrest, writing a summary of his
early motion experiments that became
his final great scientific work. He
died in Arcetri near Florence, Italy
on January 8, 1642 at age 77 after
suffering from heart palpitations
and a fever.
What Was Galileo Famous For?

Galileo’s laws of motion, made from his measurements that all

bodies accelerate at the same rate regardless of their mass or size,
paved the way for the codification of classical mechanics by Isaac
Newton. Galileo’s heliocentrism (with modifications by Kepler) soon
became accepted scientific fact. His inventions, from compasses and
balances to improved telescopes and microscopes, revolutionized
astronomy and biology. Galilleo discovered craters and mountains on
the moon, the phases of Venus, Jupiter’s moons and the stars of the

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Milky Way. His penchant for thoughtful and inventive experimentation
pushed the scientific method toward its modern form.
In his conflict with the Church, Galileo was also largely
vindicated. Enlightenment thinkers like Voltaire used tales of his
trial (often in simplified and exaggerated form) to portray Galileo as
a martyr for objectivity. Recent scholarship suggests Galileo’s actual
trial and punishment were as much a matter of courtly intrigue and
philosophical minutiae as of inherent tension between religion and
science.
In 1744 Galileo’s “Dialogue” was removed from the Church’s list
of banned books, and in the 20th century Popes Pius XII and John Paul
II made official statements of regret for how the Church had treated
Galileo.

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JEREMY BENTHAM

An influential early classical theorist was the British philosopher

Jeremy Bentham, born in 1748. He believed that people have the ability
to choose right from wrong, good from evil. His explanation for criminal
behavior included the idea that people are basically hedonistic, that
is, they desire a high degree of pleasure and avoid pain. People who
choose to commit criminal acts think they stand to gain more than they
risk losing by committing the
Jeremy Bentham was an early crime. Bentham believed that the
classical theorist who based his ideas on criminal justice system should
utilitarianism, felicitious calculus, deter people from making this
and “the greatest happiness.” choice.

UTILITARIANISM
Jeremy Bentham, a major contributor to the classical school of
criminology, based his theories on the principle of utilitarianism.

Bentham’s perspectives on
human behavior had its roots in
Utilitarianism is the doctrine that
the concept of utilitarianism,
the purpose of all actions should be
to bring about the greatest happiness
which assumes that all of a
for the greatest number of people. person’s actions are calculated.
Utilitarianism is the doctrine
that the purpose of all actions should be to bring about the greatest
happiness for the greatest number of people. For Bentham, people
calculate actions in accordance with their likelihood of obtaining
pleasure or pain. Bentham stated that an act possesses utility if it
“tends to produce benefit, advantage, pleasure, good or happiness (all
this in the present case comes to the same thing) or (which again comes
to the same thing) to prevent the happening of mischief, pain, evil or
unhappiness to the party whose interest is considered.”
Bentham developed a felicitous calculus, or moral calculus, for
estimating the probability that a person will engage in a particular
kind of behavior. People, he believed, weigh the possibility that a
particular behavior pattern or action will cause current or future
pleasure against the possibility that it will cause current or future
pain. In response to the question of why a person commits a crime,
Bentham would probably reply that the pleasure that the person
anticipated from the criminal act was much greater than the subsequent
pain that might be expected from it.

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THE GREATEST HAPPINESS AND SOCIAL CONTROL
Bentham advocated the “greatest happiness” principle and the use
of punishment to deter crime.

Bentham expounded a comprehensive code of ethics and placed much emphasis

on the practical problem of decreasing the crime problem. He aimed at a
system of social control—a method of checking the behavior of people
according to the ethical principle of utilitarianism. He believed that
an act should be judged not by an “irrational system of absolutes but
by a supposedly verifiable principle. The principle was that of ‘the
greatest happiness for the greatest number’ or simply ‘the greatest
happiness.’”
For Bentham, checks or sanctions
needed to be attached to criminal
Felicitous calculus is a moral calculus
behavior and set up by
developed by Jeremy Bentham for
estimating the probability that a
legislation, which would then
person will engage in a particular kind serve “to bring the individual’s
of behavior. pursuit of his own happiness in
line with the best interests of
the society as a whole.” Punishment, Bentham believed, was a necessary
evil—necessary to prevent greater evils from being inflicted on the
society and thus diminishing happiness. Social control based on degrees
of punishment that both fit the crime and discourage offending is part
of our system of criminal justice today. As you can see, Jeremy Bentham,
Cesare Beccaria, and the classical school of criminology had many
influences on the American system of criminal justice.

INFLUENCES OF THE CLASSICAL SCHOOL

The U.S. Bill of Rights is rooted in Beccaria’s writings. Beccaria
and Bentham also influenced the development of the modern
correctional system.

Beccaria’s groundbreaking essay strongly influenced the first ten

amendments (the Bill of Rights) to the United States Constitution and
played a significant role in bringing about many of our present-day
penal practices. It was also of primary importance in “paving the way
for penal reform for approximately the last two centuries.” Reviewing
European history, we see that the essay greatly influenced the French
penal code adopted in 1791, Russian law at the time of Catherine the
Great, Austrian law during the reign of Emperor Joseph II, and
Prussian law during the reign of Frederick the Great. By stressing
that the goal of punishment is to deter criminal behavior in people,
Beccaria reflected Jeremy Bentham’s utilitarian concepts of free will
and hedonism.

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Both Beccaria and Bentham advocated a new philosophy and a new
system of legal and penal reform. These classical theorists argued
that the proper objective of punishment should be to protect society
and its laws. It was their view that punishment should not be
inflicted for vengeance; rather, the primary purpose of punishment
should be the reduction or deterrence of crime. They advocated that
the excessively brutal punishments of mutilation and death be
abolished and that penal reforms be introduced so that the punishment
fit the crime. Thus, it was their belief that

• the punishments inflicted should be just severe enough to

outweigh any pleasures, either contemplated or actually
experienced, that could be derived from the commission of the
criminal act;
• in this way, the threat of punishment would deter most people
from committing crimes in the first place;
• the actual infliction of punishment would deter an offender from
committing additional criminal acts.

Beccaria also presented convincing arguments for imprisonment as a

form of punishment, saying it would be the most effective and
efficient method for carrying out punishment. As it happened, a more
than adequate number of jails and prisons were already conveniently in
existence throughout Europe. Prior to this time, these buildings were
used for the temporary confinement of minor offenders and those
awaiting trial, and they were easily adapted for use in implementing
Beccaria’s and Bentham’s programs.18 Thus, the classical theorists
influenced the development of the modern correctional system.

References:

• https://www.history.com/topics/inventions/galileo-galilei
• http://www.ablongman.com/html/productinfo/glick/images/61
832_CH03_058-085-r.pdf

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Chapter 1

At the end of this chapter the student should be able to:

• Understand the history of punishment and

corrections
• Recognize the objective of imprisonment

THE CODE OF HAMMURABI

The Code of Hammurabi was one of the

earliest and most complete written legal codes
and was proclaimed by the Babylonian king
Hammurabi, who reigned from 1792 to 1750 B.C.
Hammurabi expanded the city-state of Babylon
along the Euphrates River to unite all of southern
Mesopotamia. The Hammurabi code of laws, a
collection of 282 rules, established standards
for commercial interactions and set fines and
punishments to meet the requirements of justice.
Hammurabi’s Code was carved onto a massive,
finger-shaped black stone stele (pillar) that was
looted by invaders and finally rediscovered in
1901.

Hammurabi

Hammurabi was the sixth king in the Babylonian dynasty, which ruled
in central Mesopotamia (present-day Iraq) from c. 1894 to 1595 B.C.

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His family was descended from the Amorites, a semi-nomadic tribe in
western Syria, and his name reflects a mix of cultures: Hammu, which
means “family” in Amorite, combined with rapi, meaning “great” in
Akkadian, the everyday language of Babylon.
In the 30th year of his reign, Hammurabi began to expand his kingdom
up and down the Tigris and Euphrates river valley, overthrowing the
kingdoms of Assyria, Larsa, Eshunna
and Mari until all of Mesopotamia
was under his sway.
Hammurabi combined his military
and political advances with
irrigation projects and the
construction of fortifications
and temples celebrating Babylon’s
patron deity, Marduk. The Babylon
of Hammurabi’s era is now buried
below the area’s groundwater
table, and whatever archives he
kept are long dissolved, but clay
tablets discovered at other ancient sites
reveal glimpses of the king’s personality and statecraft.

One letter records his complaint of being forced to provide dinner

attire for ambassadors from Mari just because he’d done the same for
some other delegates: “Do you imagine you can control my palace in the
matter of formal wear?”

What Is the Code of Hammurabi?

The black stone stele containing the Code of Hammurabi was carved
from a single, four-ton slab of diorite, a durable but incredibly
difficult stone for carving.

At its top is a two-and-a-half-foot relief carving of a standing

Hammurabi receiving the law—symbolized by a measuring rod and tape—from
the seated Shamash, the Babylonian god of justice. The rest of the seven-
foot-five-inch monument is covered with columns of chiseled cuneiform
script.
The text, compiled at the end of Hammurabi’s reign, is less a
proclamation of principles than a collection of legal precedents, set
between prose celebrating Hammurabi’s just and pious rule. Hammurabi’s
Code provides some of the earliest examples of the doctrine of “lex
talionis,” or the laws of retribution, sometimes better known as “an eye
for an eye.”

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Stele of Hammurabi Rediscovered

In 1901 Jacques de Morgan, a French mining engineer, led an

archaeological expedition to Persia to excavate the Elamite capital of
Susa, more than 250 miles from the center of Hammurabi’s kingdom.

There they uncovered the stele of Hammurabi—broken into three

pieces—that had been brought to Susa as spoils of war, likely by the
Elamite king Shutruk-Nahhunte in the mid-12th century B.C.

Code of hammurabi

The Code of Hammurabi includes many harsh punishments, sometimes

demanding the removal of the guilty party’s tongue, hands, breasts, eye or ear.
But the code is also one of the earliest examples of an accused person being
considered innocent until proven guilty.
The 282 edicts are all written in if-then form. For example, if a man steals an
ox, then he must pay back 30 times its value. The edicts range from family law
to professional contracts and administrative law, often outlining different
standards of justice for the three classes of Babylonian society—the propertied
class, freedmen and slaves.
A doctor’s fee for curing a severe wound would be 10 silver shekels for a
gentleman, five shekels for a freedman and two shekels for a slave. Penalties
for malpractice followed the same scheme: a doctor who killed a rich patient
would have his hands cut off, while only financial restitution was required if
the victim was a slave.

THE CODE OF UR-NAMMU

The Code of Ur-Nammu is the oldest surviving

law code. This text was written on clay tablets in
the Sumerian language and is reckoned to have been
produced towards the end of the 3rd millennium BC.
The Code of Ur-Nammu may be divided into two parts,
the first is the prologue and the second is the
laws themselves. Apart from being the oldest
surviving law code, the Code of Ur-Nammu is also
important as it gives us a glimpse of the way
justice was conceived in ancient Sumerian society.
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A Law Code Divided in Pieces

Earlier law codes, such as the Code of Urukagina, are known to

exist. Nevertheless, the Code of Ur-Nammu is different in the sense that
the text itself has survived to a large extent. The actual contents of
the Code of Urukagina, by comparison, is now lost, and is only known
through references made by other texts that have been discovered.

As for the Code of Ur-Nammu, the first copy of

this legal text was discovered in two fragments at
Nippur, an ancient Sumerian city situated in modern
day Iraq. Unfortunately, due to the poor state of
preservation, only the prologue and five of the laws
were discernible. They were translated into English
in 1952 by the renowned Assyriologist, Samuel Kramer.
Subsequently, other fragments of the code were
unearthed. The ones found in Ur, for example, were
translated in 1965, and resulted in the
reconstruction of about 40 laws. Fragments were also
discovered in another Sumerian city, Sippar, though
with some slight variants.

Creator of the Code of Ur-Nammu

The Code of Ur-Nammu has been attributed

to Ur-Nammu, as the laws are credited directly
to him in the prologue. Others, however, have
argued that the law code was written by Shulgi,
the son and successor of Ur-Nammu. In any case,
Ur-Nammu was a king of the Sumerian city state
of Ur. Scholars are not entirely in agreement
as to when this king reigned, though it may
have been during the last century of the 3rd
millennium BC. Nevertheless, the reign of Ur-
Nammu is generally regarded to have been a
peaceful and prosperous one, with some
considering it to be part of the ‘Sumerian
Renaissance’.

The Code of Ur-Nammu begins with a prologue, which is a standard

feature of Mesopotamian law codes. Here, the deities for Ur-Nammu’s

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kingship, Nanna and Utu, are invoked, after which the king is said to
have established equity in the land. This included the banishment of
malediction, violence, and strife, as well as the protection of society’s
weakest individuals. After the prologue, the text deals with the laws
themselves.

“If (Insert Crime), Then (Insert Punishment)”

The laws in the Code of Ur-Nammu follow a set pattern, i.e. If

(insert crime), then (insert punishment). This formula would be followed
by almost all law codes that came after the Code of Ur-Nammu. In the law
code, different categories of crime, as well as their resulting
punishments, may be distinguished. For example, there are a number of
capital offences, such as murder, robbery, and rape. The punishment for
such crimes was death. For example, “If a man commits murder, that man
must be killed.”, and “If a man violates the right of another and
deflowers the virgin wife of a young man, they shall kill that male.”

Those who committed offences that were less serious in nature, on

the other hand, would have been punished by imprisonment and / or fines.
For instance, “If a man commits a kidnapping, he is to be imprisoned and
pay 15 shekels of silver.”, and “If a man knocks out a tooth of another
man, he shall pay two shekels of silver”.

There are also laws that ensure that if the innocence of an accused
person is proven, his / her accuser would be punished instead. For
example, “If a man is accused of sorcery he must undergo ordeal by water;
if he is proven innocent, his accuser must pay 3 shekels”, and “If a man
accused the wife of a man of adultery, and the river ordeal proved her
innocent, then the man who had accused her must pay one-third of a mina
of silver.”

References:

• https://www.history.com/topics/ancient-history/hammurabi
• https://www.ancient-origins.net/artifacts-ancient-
writings/code-ur-nammu-when-ancient-sumerians-laid-down-
law-everyone-obeyed-009333

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Chapter 4

At the end of this chapter the student should be able to:

• describe Cesare Beccaria’s ideas of the social

contract and the pleasure principle and their
implications for criminal justice.

CESARE BECCARIA

Cesare Beccaria, a major contributor to the classical school of

criminology, was born in Milan, Italy, on March 15, 1738, and died in
1794. Born an aristocrat, he studied in Parma and graduated from the
University of Pavia.3 In 1763, the protector of prisons, Pietro Verri,
gave his friend Beccaria an assignment that would eventually become
the essay “On Crimes and Punishments.” It was completed in January,
1764, and first published anonymously in July of that year. The
article caused a sensation, but not everybody liked it. The fact that
it was first published anonymously suggested that “its contents were
designed to undermine many if not all of the cherished beliefs of
those in a position to determine the fate of those accused and
convicted of crime.... [An] attack on the prevailing systems for the
administration of criminal justice, ...it aroused the hostility and
resistance of those who stood to gain by the perpetuation of the
barbaric and archaic penological institutions of the day.”

EIGHTEENTH-CENTURY CRIMINAL LAW

Cesare Beccaria, a major contributor to the classical school of
criminology, responded to eighteenth-century criminal law, which
was repressive, uncertain, and barbaric.

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To understand why Beccaria’s essay created such controversy, one need
only consider the state of criminal law in Europe at the time.
Eighteenth-century criminal law was repressive, uncertain, and
barbaric. It also permitted, as well as encouraged, abusive and
arbitrary practices. The law gave public officials unlimited power to
deprive people of their freedom, property, and life with no regard to
principles embodied in the concept “due process of law”:

Secret accusations were in vogue and persons were imprisoned on

the flimsiest of evidence. Torture, ingenious and horrible, was
employed to wrench confessions from the recalcitrant. Judges were
permitted to exercise unlimited discretion in punishing those
convicted of crime. The sentences imposed were arbitrary,
inconsistent, and depended upon the status and power of the
convicted. . . . A great array of crimes were punished by death
not infrequently preceded by inhuman atrocities....In practice no
distinction was made between the accused and the convicted. Both
were detained in the same institution and subjected to the same
horrors of incarceration. This same practice prevailed in regard
to the convicted young and old, the murderer and the bankrupt,
first offenders and hardened criminals, men and women. All such
categories of persons were promiscuously thrown together, free to
intermingle and interact.

The preceding description applies to

the status of criminal law when
Cesare Beccaria focused on
Beccaria wrote his essay on crime. It
eighteenth-century law; social
contract theory; guilt and
helps us to understand why his essay
punishment; punishment, was considered humane and
pleasure, and pain; and the revolutionary in character. For
purpose of punishment. Beccaria, it was bad laws, not evil
people, that were the root of the
crime problem. A modern system of law that guaranteed people equal
treatment was needed to replace the old, unenlightened criminal
justice system of his time.

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Beccaria’s Proposed Reforms

Beccaria’s specific suggestions for a system of criminal justice based

on the social contract covered the areas of guilt and punishment.
Even though people had to surrender part of their liberty for
protection, Beccaria believed they would want to give up “the least
possible portion”: “The aggregate of these least possible portions
constitutes the right to punish; all that exceeds this is abuse and not
justice; it is fact but by no means right.” Given this view, Beccaria
advocated that only legislators should be the creators of laws. He
stated that the authority for “making penal laws can reside only with
the legislator, who represents the whole society united by the social
contract.” In addition, unless it was ordained by the laws, judges were
not permitted to inflict punishment on any member of society.
Beccaria also made some important points about being termed
“guilty”: “No man can be called guilty before a judge has sentenced
him, nor can society deprive him of public protection before it has
been decided that he has in fact violated the conditions under which
such protection was accorded him. What right is it, then, if not simply
that of might, which empowers a judge to inflict punishment on a
citizen while doubt still remains as to his guilt or innocence?” This new
concept, “innocent until proven guilty,” underlies our criminal justice
system today.

Source: C. Beccaria, On Crimes and Punishments, translated by H.

Paolucci, New York: Bobbs-Merrill, 1963, pp. 8–13, 30–33, 45–58, 62–

SOCIAL CONTRACT THEORY

Beccaria based his call for reform on the theory that citizens
and the state have a “social contract” that entitles people to
legal protections against crime.

Beccaria’s blueprint for reform had its roots in social contract

theory, which stresses the idea that people were originally without
government. People then created the state through a “social contract,”
by which they surrendered many of their “natural liberties.” In
return, people received the security that government could provide
“against antisocial acts.” Beccaria wrote, “Laws are the conditions
under which independent and isolated men united to form a society.”

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Weary of living in a continual state of war, and of enjoying a liberty
rendered useless by the uncertainty of preserving it, they sacrificed
a part so that they might enjoy the rest of it in peace and safety.
The sum of all these portions of liberty sacrificed by each for his
own good constitutes the sovereignty of a nation, and their legitimate
depository and administrator is the sovereign.”

PLEASURE, PAIN, AND PUNISHMENT

Pleasure and pain, according to Beccaria, are the only “springs
of action,” and the purpose of punishment is to prevent a
criminal from doing any further injury to the community and to
prevent others from committing similar crimes.

Beccaria believed that punishment should be based on the pleasure/pain

principle. For him, pleasure and pain were the only “springs of
action” in people who are in possession of their senses: “If an equal
punishment be ordained for two crimes that injure society in different
degrees, there is nothing to deter men from committing the greater
[crime] as often as it is attended with greater advantage.” He also
believed that punishment and penalties should be imposed on the guilty
according to a scale determined by the degree of danger the given
crime poses for the community: “If mathematical calculation could be
applied to the obscure and infinite combinations of human actions,
there might be a corresponding scale of punishments descending from
the greatest to the least.” With such an exact scale of crimes and
punishments, people would know which penalties were attached to which
criminal acts. What, then, was the purpose of punishment? For
Beccaria, its purpose was to prevent a criminal from doing any further
injury to the community or society. The purpose of punishment was also
to prevent others from committing similar crimes. These purposes
required setting penalties that would make strong and lasting
impressions on others with the “least torment to the body of the
criminal.” Punishment should be no more severe than deemed necessary
to deter individuals from committing crimes against others or the
state. Maximizing the preventive, or deterrent, effect would be
achieved by prompt, effective, and certain punishment: “The more
promptly and the more closely punishment follows upon the commission
of a crime, the more just and useful will it be....I have said that
the promptness of punishments is more useful because when the length
of time that passes between the punishment and misdeed is less, so
much stronger and more lasting in the human mind is the association of
these two ideas, crime and punishment; they then come insensibly to be
considered, one as the cause, the other as the necessary inevitable
effect.” After proposing that the rich should be punished in the same
way as the poor, and that both torture to obtain confessions and

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capital punishment should be abolished, Beccaria concluded: “So that
any punishment be not an act of violence of one or of many against the
other, it is essential that it be public, prompt, necessary, [as]
minimal in severity as possible under given circumstances,
proportional to the crime, and prescribed by the laws.”

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JOHN HOWARD
A philanthropist and social reformer, Howard was dedicated to
prison reform and public health improvements.

John Howard was born in Hackney, in east London in

1726, the son of a partner in an upholstery
business. On his father's death in 1742, he
inherited considerable wealth and settled on an
estate in Bedfordshire.

In 1773, he was appointed high sheriff of

Bedfordshire and supervision of the county jail
became of one his responsibilities. He was shocked
by the conditions he found there and visited others
in England, where the situation was no better.
Jailers were not salaried but lived off fees paid by prisoners for
food, bedding and other facilities. This system meant that poorer
prisoners lived in terrible conditions. Many jailers demanded payment
before prisoners were released, meaning that some stayed in jail even
if they were innocent or had served their sentences.

Howard's concerns led to two 1774

In 1866, the Howard League
parliamentary acts - one abolished
for Penal Reform was founded jailers' fees, the other enforced
in his honour. improvements in the system leading to
better prisoner health. Howard,
however, felt that the acts were not strictly obeyed. In 1775, he
embarked on a tour of prisons in Europe visiting Scotland, Ireland,
France, Holland, Flanders, some German states and Switzerland. He
travelled on a similar route two years later, and in 1781 added
Denmark, Sweden and Russia to the list. He visited Spain and Portugal
in 1782. At a time when travel was uncomfortable and frequently
dangerous, he travelled nearly 80,000 kilometres, making seven major
journeys between 1775 and 1790, the first two of which are described
in his book 'The State of Prisons in England and Wales... and an
Account of Some Foreign Prisons'.

While examining Russian military hospitals, Howard contracted typhus

in Kherson, Ukraine, and died there on 20 January 1790.

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References:

• http://www.ablongman.com/html/productinfo/glick/images/61
832_CH03_058-085-r.pdf
• http://www.bbc.co.uk/history/historic_figures/howard_john.sht
ml

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