Advances in Criminological Theory

Volume 2

William S. Laufer, Freda Adler

• Publisher: Routledge
• Year: 2017
• Topic: Social Sciences
• eBook ISBN:
  9781351317146
• Subtopic: Criminology
• Index: Social Sciences

Criminology has developed strong methodological tools over the past decades, establishing itself as a competitive and sophisticated social science. Despite and perhaps because of its emphasis on research design, methodology, and quantitative analysis, criminology has had few significant advances in theory. This is the first publication exclusively dedicated to the dissemination of original work on criminological theory. It encourages theory construction and validation in existing criminological publications, as well as furthering the free exchange of ideas, propositions, and postulates. This volume is dedicated to a pioneer in criminology, Donald Cressey, and is especially noteworthy for its comparative and international dimension.

1

Whose Prophet Is Cesare Beccaria? An Essay on the Origins of Criminological Theory

G. O. W. Mueller

Cesare Bonesana, Marchese de Beccaria, known as Cesare Beccaria, was born on March 15, 1738, in Milan, Italy. Educated as an economist, tutored in liberal circles, he published a remarkable essay when only 26 years old: the Essay on Crimes and Punishments.¹ Nothing else was remarkable about the life of Beccaria. But that essay shook the then-extant criminal justice system and has had an impact on criminological theory ever since. The essay was an indictment of the brutal, inhumane manner in which all European jurisdictions then dealt with the crime problem, and it affected criminological theory development for two centuries. In this essay I shall deal with the contemporary social significance of Beccaria’s criminal policy, its influence on criminological theory, and its practical global impact.

Beccaria made a significant impression on the founders of the American republic. The first American edition of the Essay on Crimes and Punishments was published in New York in 1773, just three years before the American Declaration of Independence. Three of the founding fathers of the United States were ardent admirers of Beccaria—Benjamin Franklin, John Adams, and Thomas Jefferson, principal author of the Declaration of Independence. About Adams, Thorsten Sellin reminded us: “In 1770, a young Boston lawyer, John Adams, respectfully quoted Beccaria when he addressed the jury in ‘defense of the British soldiers implicated in what became known as the Boston Massacre’” (1980:141). Jefferson, as Marvin Wolfgang noted, “knew of Beccaria and in his first inaugural address as the third president of the U.S.A., proposed what he called ‘Equal and exact justice to all men.’ In 1779 he drafted ‘A Bill of Proportioning Crimes and Punishments’” (1979:435). I doubt, however, that Jefferson read the Essay on Crimes and Punishments in its entirety, as his proposed bill contained proportionate corporal punishments which Beccaria would have condemned as unnecessarily cruel. Fortunately, Jefferson’s bill never became law. It would indeed have been inconsistent with the Bill of Rights’ prohibition of cruel and unusual punishments (Eighth Amendment to the U.S. Constitution) (see Morgan, 1965:248, 341, where he quotes Cotton Mather).

What do contemporary American students of criminology learn about Beccaria? An examination of nine of the leading textbooks on criminology, which, together, are read by 180,000 young men and women annually as part of their introductory instruction in criminology, reveals that all of these books discuss Beccaria. Most of them do so fairly, except one which regards Beccaria as simply the creator of a rational system designed to protect the then-new capitalist society (Quinney, 1979:5). All the others accurately stress Beccaria’s principal philosophical accomplishments. One of the leading texts emphasizes his “principal application [of] the hedonistic doctrine to penology” and, thus, his insistence on deterrence (Sutherland and Cressey, 1978:56). Another likewise emphasizes Beccaria’s crucial use of deterrence within hedonism, while also acknowledging his insistence on a “Just Deserts” theory, or retribution (Reid, 1985:72; 1987:58-59). A third book credits him with having founded deterrence theory and—indeed—the classical school (Haskell and Yablonski, 1983:7, 465). Yet another book finds Beccaria’s principles to be three: (1) the theory of free will, (2) a society of rational human beings, and (3) hedonism (Rogers and Mays, 1987:68). A further author likewise acknowledges that Beccaria, together with Bentham, was the founder of the classical school, which he then subjects to the minor criticism of having been created by “armchair analysis and logic,” rather than science (Siegel, 1983:93, 125). Authors of a somewhat radical persuasion call the Essay a conservative rather than a radical statement (Binder, Geis, and Bruce, 1988:103). Although it may sound conservative by today’s standards, it certainly was not in 1764. Two other textbook authors, after summarizing Beccaria’s principal program points, praise him for his insistence on the state’s duty to ensure the protection of civil liberties (Mannle and Hirschel, 1982:30). Lastly, a Canadian scholar singles out for special mention Beccaria’s identification of two main causes of crime: bad laws, and economic conditions that, according to Beccaria, explain the multitude of theft crimes among the poor (Hagan, 1985:13-14).

American criminology students on the graduate level will not only read the Essay itself, or the splendid Beccaria biography by Elio Monachesi (1960), but also critical analyses, such as those contained in recent articles by the American Beccaria scholar David B. Young (1983, 1987), who is particularly concerned with fathoming the inconsistencies between Beccaria’s utilitarism and his retributism. All in all, Beccaria is doing well in North America, as far as the future generation of criminologists is concerned.

But to many undergraduates Beccaria will remain an enigma, especially in the current environment of changing penal philoso-phies—from the rehabilitative model, to a retributionist model, to an incapacitation model. The question naturally arises, just whose prophet is this mysterious philosopher Cesare Beccaria? That of the utilitarians? That of the retributists? That of the radical criminologists? That of traditional criminologists looking for causal explanations? Beccaria himself would have been astounded by this line of questioning: of course criminal law is justifiable only if it serves a purpose, namely the prevention of future crime, through deterrence and incapacitation. Said he: “The end of punishment, therefore, is no other than to prevent the criminal from doing further injury to society, and to prevent others from committing the like offense” (p. 47). To that extent, we must grant, Beccaria is a utilitarian, like his kindred in spirit Jeremy Bentham (Bentham, 1892), and scholars who espouse utilitarian notions should regard Beccaria as their prophet. Thus, James Q. Wilson, when he firmly endorsed deterrence and collective incapacitation (1975);² Peter Greenwood, the founder of the concept of selective incapacitation (Greenwood, 1982); and his colleage Mark Moore and associates, who further advanced the concept (Moore et al., 1985), all in effect have followed on the track marked originally by Beccaria.

But at this point Beccaria would have added that punishment must be strictly delimited so that it is proportionate to the crime committed and the harm done, in strict proportionality. Said he: “[C]rimes are only to be measured by the injury done to society” (p. 33). To that extent Beccaria is a retributionist—with one failing, I respectfully suggest: by excluding the perpetrator’s criminal intention (or motivation) Beccaria violates the principle of proportionality (if not that of retribution), especially between one who steals to fend off starvation and one who steals out of greed. Nevertheless, for his basic adherence to the proportionality principle, Beccaria ought to be acclaimed by American mainstream criminologists, who have indeed returned to Beccaria’s principle of punishments in proportion to the harm done,³ following a period of disillusionment about the supposed failure of utilitarian (especially rehabilitative) models (Martinson, 1974; Lipton, Martinson, and Wilks, 1975). What contemporary American retributionists can particularly sympathize with is Beccaria’s recognition of the lack of uniformity of sentences in a system of judicial discretion. Said Beccaria: “We see the same crimes punished in a different manner at different times in the same tribunals, the consequence of not having consulted the constant and invariable voice of the laws, but the erring instability of arbitrary interpretation” (p. 24).

Andrew von Hirsch, founder of the Just Deserts theory of punishment, should feel very indebted to Beccaria’s lead, and indeed he recorded the indebtedness with the words: “To our surprise, we found ourselves returning to the ideas of such Enlightenment thinkers as Kant and Beccaria—ideas that antedated notions of rehabilitation that emerged in the nineteenth century” (von Hirsch, 1976:6).⁴

But Beccaria should also be acclaimed as a prophet among the current generation of conflict and radical scholars. Was it not Beccaria who first attacked the laws that were imposed by those above, to restrain those below? Said he: “[W]ho made these laws? The rich and the great, who never deigned to visit the miserable hut of the poor, who never see him dividing a piece of mouldy bread, amidst the cries of his famished children and the tears of his wife. Let us break those ties, fatal to the greatest part of mankind, and only useful to a few indolent tyrants” (p. 103). In the introduction to his Essay Beccaria summed up his radicalism in these words: “In every society there is an effort continually tending to confer on one part the height of power and happiness, and reduce the other to the extreme of weakness and misery” (p. xii).

Such words could well have been written by any of the contemporary radical theorists who hold, as Quinney put it, that “the state is organized to serve the interests of the dominant economic class, the capitalist ruling class,” and that “criminal law is an instrument the state and dominant ruling class use to maintain and perpetuate the social and economic order” (1975:199). Yet Quinney, as we noted earlier, overlooks Beccaria’s radical stance and regards him as simply another conservative supporter of the capitalist system (1979:n. 5).

The somewhat less radical conflict criminologists, likewise, should embrace Beccaria’s motto. As Chambliss and Seidman put it, virtually in Beccarian terms: “[S]ociety is composed of groups that are in conflict with one another. . . . [T]he law represents an institutionalized tool of those in power (ruling class) which functions to provide them with superior moral as well as coercive power in conflict” (1971:504). Austin Turk further echoes Beccaria’s conflict motto when he pronounces that “criminality is not a biological, psychological, or even behavioral phenomenon, but a social status defined by the way in which an individual is perceived, evaluated, and treated by legal authorities” (1969:25). According to this view, those who make the laws have the self-perpetuating power to make these laws, with which they are enabled to shape and manipulate all of society’s institutions.

Some of Beccaria’s contemporaries lamented that he had not said enough. The Abbé Gabriel de Mably demanded revolutionary social and political changes in order to remove the glaring inequalities which accounted for so much crime (Young, 1987:161, n. 16). But Beccaria stopped short of calling for a revolution. Recognizing that it was bad laws, like those nurturing inequality, which caused much of crime, he simply called for new, good laws—to be achieved by consensus, in accordance with the social contract theory of Montesquieu, Rousseau, Voltaire, and their brethren of the Enlightenment: “[L]aws ... are or ought to be conventions between men in a state of freedom.” (p. xii). “Their only end in view, [is] the greatest happiness of the greatest number” (p. xii).

Beccaria also ought to be heralded by modern mainstream criminologists. What could Beccaria have had in mind when he postulated:”[Y]et another method of preventing crime is to reward virtue” (p. 156)? One of the principal propositions of Sutherland’s theory of differential association comes to mind: “[A] person becomes delinquent because of an excess of definitions favorable to violation of law over definitions unfavorable to violation of law” (Sutherland and Cressey, 1978:81). Consequently, with his reward-based philosophy, Beccaria suggests that crime is, indeed, a learned behavior.

Moreover, did he not anticipate culture-conflict theorists to such an extent that they should acknowledge the heritage? Said Beccaria: “The credibility of a witness [or for that matter, any human being] may also be diminished by his being a member of a private [or, perhaps any other] society, whose custom and principles of conduct are either not known or are different from those of the public. Such a man has not only his own passions, but those of the society of which he is a member” (pp. 50-51). Compare this insight with the credo of culture-conflict theorists. As put by Thorsten Sellin: “There are social groups on the surface of the earth which possess complexes of conduct norms which, due to differences in the mode of life and the social values evolved by these groups, appear to set them apart from other groups in many or most respects. We may expect conflicts of norms. . . .[C]ulture conflicts are the natural outgrowth of processes of social differentiation, which produce an infinity of social groupings, each with its own definitions of life situations, its own interpretations of social relationships, its own ignorance or misunderstanding of the social values of other groups” (Sellin, 1938:63).

And may we add social-control theorists to the list of those foreshadowed by Beccaria, who observed “that by justice I understand nothing more than that bond which is necessary to keep the interest of individuals united, without which men would return to their original state of barbarity” (p. 19; emphasis added)! Is that at all different from Travis Hirschi’s characterization of bonds within control theories: “Control theories assume that delinquent acts result when an individual’s bond to society is weak or broken. Since these theories embrace two highly complex concepts, the bond of an individual to society, it is not surprising that they have at one time or another formed the basis of explanations of most forms of aberrant or unusual behavior. It is also not surprising that control theories have described the elements of the bond to society in many ways, and that they have focused on a variety of units as the point of control” (Hirschi, 1969:16). Hirschi sums up control theory in general in these terms: “Control theory remains what it has always been: a theory in which deviation is not problematic. The question ‘why do they do it?’ is simply not the question the theory is designed to answer. The question is ‘why don’t we do it?’ There is much evidence that we would if we dared” (1969:34). Let us hear Beccaria on control theory: “No man ever gave up his liberty merely for the good of the public. Such a chimera exists only in romances. Every individual wishes, if possible, to be exempt from the compacts that bind the rest of mankind” (p. 18). So much for amoral man in a society needing control.

Beccaria ought also to be acclaimed as a prophet by those who champion a scientific, research-oriented outlook. His program was not just an idealistic armchair contemplation of human nature, but one ...

Table of contents

• Cover
• HalfTitle Page
• Title Page
• Copyright Page
• Dedication
• Contents
• List of Tables and Figures
• Foreword
• 1. Whose Prophet Is Cesare Beccaria? An Essay on the Origins of Criminological Theory
• 2. On the Plausibility of Corporate Crime Theory
• 3. Parental Work Control and Delinquency: A Theoretical and Empirical Critique
• 4. Legal Socialization Theory: A Precursor to Comparative Research in the Soviet Union
• 5. Theoretical Explanations of Race Differences in Heroin Use
• 6. The Media World of Crime: A Study of Social Learning Theory and Symbolic Interaction
• 7. Epistemological Problems in Criminology
• 8. The State of Criminology: Theoretical Decay or Renaissance
• 9. One Perspective on the State of Criminology
• Name Index
• Subject Index