- Category: Criminology
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It has been generally accepted that a systematic study of criminology was first taken up by the Italian scholar, Ceasare Bonesana Marchese de Becaria (1938-94) who is known as the founder of modern criminology. His greatest contribution to the science of criminology was that he, for the first time, proceeded with the study of criminals on a scientific basis and reached certain conclusions from which definite methods of handling crime and criminals could be worked out. Thus the ‘theories of criminology’ or ‘the schools of criminology’ are of a later origin.
Meaning of the ‘School of Criminology’
Edwin Sutherland pointed out that a school of criminology connotes
“the system of thought which consists of an integrated theory of causation of crime and of policies of control implied in the theory of causation”.
Therefore, a school of criminology implies the following three important points:
1. The adherents of each school try to explain the causation of crime and criminal behavior in their own way relying on the theory propounded by the exponent of that particular school.
2. Each school of criminology suggests punishment and preventive measures to suit its ideology.
3. And, each of the school represents the social attitude of people towards crime and criminal in a given time.
In an attempt to find a rational explanation of crime, a large number of theories have been propounded. Various factors such as evil spirit, sin, disease, heredity, economic maladjustment etc. have been put forward either singly or together to explain criminality. With the advance of behavioral sciences, monogenetic explanation of human conduct is no longer valid and the modern trend is to adopt an eclectic view about the genesis of crime. However, some criminologists still tend to lay greater emphasis on physical traits in order to justify exclusive resort to correctional methods for the treatment of offender.
Pre-Classical School of Criminology
The period of seventeenth and eighteenth century in Europe was dominated by the scholasticism of Saint Thomas Aquinas. The dominance of religion in State activities was the chief characteristic of that time. In political sphere, thinkers such as Hobbes and Locke were concentrating on social contract as the basis of social evolution. The concept of Divine right of king advocating supremacy of monarch was held in great esteem. As scientific knowledge was yet unknown the concept of crime was rather vague and obscure. There was a general belief that man by nature is simple and his actions are controlled by some super power. It was generally believed that a man commits crime due to the influence of some external spirit called ‘demon’ or ‘devil’. Thus an offender commits a wrongful act not because of his own free will but due to the influence of some external super power. No attempt was, however, made to probe into the real causes of crime. This demonological theory of criminality propounded by the exponents of pre-classical school acknowledged the omnipotence of spirit, which they regarded as a great power.
The pre-classicals considered crime and criminals as an evidence of the fact that the individual was possessed of devil or demon the only cure for which was testimony of the effectiveness of the spirit. Worships, sacrifices and ordeals by water and fire were usually prescribed to specify the spirit and relieve the victim from its evil influence. An ordeal is an ancient manner of trial in criminal cases. When an offender pleaded “not guilty”, he might choose whether he would put himself for trial upon God and the country, by 12 men or upon God only, and then it was called ‘the judgment of God’, presuming that God would deliver the innocent. Examples of such ordeals are, throwing into fire, throwing into water after tying a stone to his neck, administration of oath by calling up God’s wrath, trial by battle, etc.
Trial by battle was common mode of deciding the fate of criminal. The oaths and ordeals played a very important role in the ancient judicial system in determining the guilt of the offender. The justification advanced for these rituals was the familiar belief that “when the human agency fails, recourse to divine means of proof becomes most inevitable”. Though these practices appear to be most irrational and barbarous to the modern mind, they were universally accepted and were in existence in most Christian countries till thirteenth century. The Roman law completely ignored the system of ordeals and it was forbidden in Quran.
The right of society to punish the offender was, however, well recognized. The offender was regarded as an innately depraved person who could be cured only by torture and pain. The evolution of criminal law was yet at a rudimentary stage. Hobbes suggested that fear of punishment at the hands of monarch was a sufficient deterrent for the members of early society to keep them away from sinful acts which were synonymous to crimes. Thus the theosophists, notably St. Thomas Aquinas and the social contract writers such as Donte Alighieri, Machiavelli, Martin Luther and Jean Bodin provided immediate background for Beccaria’s classical school at a later stage. The pre-classical thinking, however, withered away with the lapse of time and advancement of knowledge.
The Classical School
The Classical School in criminology is usually a reference to the eighteenth-century work during the Enlightenment by the utilitarian and social contract philosophers Jeremy Bentham and Cesare Beccaria. Their interests lay in the system of criminal justice and penology and, indirectly through the proposition that "man is a calculating animal", in the causes of criminal behaviour. The Classical school of thought was premised on the idea that people have free will in making decisions, and that punishment can be a deterrent for crime, so long as the punishment is proportional, fits the crime, and is carried out promptly.
Beccaria, the pioneer of modern criminology expounded his naturalistic theory of criminality by rejecting the omnipotence of evil spirit. He laid greater emphasis on mental phenomenon of the individual and attributed crime to ‘free will’ of the individual. Thus he was much influenced by the utilitarian philosophy of his time which placed reliance on hedonism, namely, the “pain and pleasure theory”. As Donald Taft rightly put it, this doctrine implied the notion of causation in terms of free choice to commit crime by rational man seeking pleasure and avoiding pain.
Main Reforms Advocated by the Classical School
The system of law, its mechanisms of enforcement and the forms of punishment used in the eighteenth century were primitive and inconsistent. Judges were not professionally trained so many of their decisions were unsatisfactory being the product of incompetence, capriciousness, corruption or political manipulation. The use of torture to extract confessions and a wide range of cruel punishments such as whipping, mutilation and public executions were commonplace. A need for legal rationality and fairness was identified and found an audience among the emerging middle classes whose economic interests lay in providing better systems for supporting national and international trade.
John Locke considered the mechanism that had allowed monarchies to become the primary form of government. He concluded that monarchs had asserted the right to rule and enforced it either through an exercise in raw power, or through a form of contract, e.g. the feudal system had depended on the grants of estates in land as a return for services provided to the sovereign. Locke proposed that all citizens are equal, and that there is an unwritten but voluntary contract between the state and its citizens, giving power to those in government and defining a framework of mutual rights and duties. In Leviathan, Thomas Hobbes wrote, "the right of all sovereigns is derived from the consent of every one of those who are to be governed." This is a shift from authoritarianism to an early model of European and North American democracy where police powers and the system of punishment are means to a more just end.
Cesare Beccaria (1738-1794)
In 1764, Beccaria published Dei Deliti e Delle Pene ("On Crimes and Punishments") arguing for the need to reform the criminal justice system by referring not to the harm caused to the victim, but to the harm caused to society. In this, he posited that the greatest deterrent was the certainty of detection: the more swift and certain the punishment, the more effective it would be. It would also allow a less serious punishment to be effective if shame and an acknowledgement of wrongdoing was a guaranteed response to society's judgment. Thus, the prevention of crime was achieved through a proportional system that was clear and simple to understand, and if the entire nation united in their own defence. His approach influenced the codification movement which set sentencing tariffs to ensure equality of treatment among offenders. Later, it was acknowledged that not all offenders are alike and greater sentencing discretion was allowed to judges. Thus, punishment works at two levels. Because it punishes individuals, it operates as a specific deterrence to those convicted not to reoffend. But the publicity surrounding the trial and the judgment of society represented by the decision of a jury of peers, offers a general example to the public of the consequences of committing a crime. If they are afraid of similarly swift justice, they will not offend.
In his book "On Crimes and Punishments" Beccaria presented a coherent, comprehensive design for an enlightened criminal justice system that was to serve the people rather than the monarchy. According to Beccaria, the crime problem could be traced not to bad people but to bad laws. A modern criminal justice system should guarantee all people equal treatment before the law. Beccaria’s book supplied the blue print. That blue print was based on the assumption that people freely choose what they do and are responsible for the consequences of their behavior. Beccaria proposed the following principles:
Laws Should Be Used To Maintain Social Contract: “Laws are the conditions under which men, naturally independent, united themselves in society. Weary of living in a continual state of war, and of enjoying a liberty, which became a little value, from the uncertainty of its duration, they sacrificed one part of it, to enjoy the rest in peace and security.”
Only Legislators Should Create Laws: “The authority of making penal laws can only reside with the legislator, who represents the whole society united by the social compact.”
Judges Should Impose Punishment only in Accordance with the Law: “[N]o magistrate then, (as he is one of the society), can, with justice inflict on any other member of the same society punishment that is not ordained by the laws.”
Judges Should not Interpret the Laws: “Judges, in criminal cases, have no right to interpret the penal laws, because they are not legislators….Everyman has his own particular point of view and, at different times, sees the same objects in very different lights. The spirit of the laws will then be the result of the good or bad logic of the judge; and this will depend on his good or bad digestion.”
Punishment Should be Based on the Pleasure/Pain Principle: “Pleasure and pain are the only springs of actions in beings endowed with sensibility….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 as often as it is attended with greater advantage.”
Punishment Should be Based on the Act, not on the Actor: “Crimes are only to be measured by the injuries done to the society they err, therefore, who imagine that a crime is greater or less according to the intention of the person by whom it is committed.”
The Punishment Should be Determined by the Crime: “If mathematical calculation could be applied to the obscure and infinite combinations of human actions, there might be a corresponding scale of punishment descending from the greatest to the least.”
Punishment Should be Prompt and Effective: “The more immediate after the commission of a crime a punishment is inflicted the more just and useful it will be….An immediate punishment is more useful; because the smaller the interval of time between the punishment and the crime, the stronger and more lasting will be the association of the two ideas of crime and punishment.”
All People Should be Treated Equally: “I assert that the punishment of a noble man should in no wise differ from that of the lowest member of the society.”
Capital Punishment Should be Abolished: “The punishment of death is not authorized by any right; for….no such right exists….The terrors of death make so slight an impression, that it has not force enough to withstand forgetfulness natural to mankind.”
The Use of Torture to Gain Confessions Should be Abolished: “It is confounding all relations to expect…that pain should be the test of truth, as if truth resided in the muscles and fibers a wretch in torture. By this method the robust will escape, and the feeble be condemned.”
It is Better to Prevent Crime than to Punish Them: “Would you prevent crimes? Let the laws be clear and simple, let the entire force of the nation be united in their defence, let them be intended rather to favour every individual than any particular classes…. Finally, the most certain method of preventing crimes to perfect the system of education.”
Perhaps no other book in the history in the history of criminology has had so great an impact. After the French Revolution, Beccaria’s basic tenets served as a guide for the drafting of the French Penal Code, which was adopted in 1791.
Legal scholars and reformers throughout Europe proclaimed their indebtedness to Beccaria, but none owed more to him than the English legal philosopher Jeremy Bentham. Bentham had long and productive career. He inspired many of his contemporaries, as well as criminologists of future generations, with his approach to rational crime control.
Bentham devoted his life to developing a scientific approach to the making and breaking of laws. Like Beccaria he was concerned with achieving “the greatest happiness of the greatest number.” His work was governed by utilitarian principles. Utilitarianism assumes that all human actions are calculated in accordance with their likelihood of bringing happiness (pleasure) or unhappiness (pain). People weigh the probabilities of present future pleasures against those of present and future pain.
Bentham proposed a precise pseudo-mathematical formula for this process, which he called “felicific calculus.” According to his reasoning individuals are “human calculators” who out all the factors into an equation in order to decide whether or not a particular crime is worth committing. This notion may seem rather whimsical today, but at a time when there were over 200 capital offences, it provided a rationale for reform of the legal system. Bentham reasoned that if prevention was the purpose of punishment, and if punishment became too costly by creating more harm than good, then penalties need to be set just a bit an excess of the pleasure one might derive from committing a crime, and no higher. The law exists in order to create happiness for the community. Since punishment creates unhappiness, it can be justified only if it prevents a greater evil than it produces. Thus, Bentham suggested if a hanging a man’s effigy produced the same preventive effect as hanging the man himself there would be no reason to hang the man.
In this context, the most relevant idea was known as the "felicitation principle", i.e. that whatever is done should aim to give the greatest happiness to the largest possible number of people in society. Bentham argued that there had been "punishment creep", i.e. that the severity of punishments had slowly increased so that the death penalty was then imposed for more than two hundred offences in England (Landau, Norma, 2002). For example, if rape and homicide were both punished by death, then a rapist would be more likely to kill the victim (as a witness) to reduce the risk of arrest.
Bentham posited that man is a calculating animal who will weigh potential gains against the pain likely to be imposed. If the pain outweighs the gains, he will be deterred and this produces maximal social utility. Therefore, in a rational system, the punishment system must be graduated so that the punishment more closely matches the crime. Punishment is not retribution or revenge because that is morally deficient: the hangman is paying the murder the compliment of imitation.
But the concept is problematic because it depends on two critical assumptions:
if deterrence is going to work, the potential offender must always act rationally whereas much crime is a spontaneous reaction to a situation or opportunity; and
if the system graduates a scale of punishment according to the seriousness of the offence, it is assuming that the more serious the harm likely to be caused, the more the criminal has to gain.
In this context, note Bentham's proposal for a prison design called the "panopticon" which, apart from its surveillance system included the right of the prison manager to use the prisoners as contract labor.
Spiritualistic understandings of crime stem from an understanding of life in general, that finds most things in life are destiny and cannot be controlled, we are born male or female, good or bad and all our actions are decided by a higher being. People have held such beliefs for all of recorded history, “primitive people regarded natural disasters such as famines, floods and plagues as punishments for wrongs they had done to the spiritual powers” (Vold, G. Bernard, T. and Snipes, J. 1998). These spiritual powers gained strength during the middle ages as they bonded with the feudal powers to create the criminal justice systems. Under a spiritualistic criminal justice system, crime was a private affair that was conducted between the offender and the victim’s family. However this method proved to be too revengeful, as the state took control of punishment. Spiritual explanations provided an understanding of crime when there was no other way of explaining crime. However, the problem with this understanding is it cannot be proven true, and so it was never accepted.
The main tenets of classical school of criminology why noted below
1. Man’s emergence from the State’s religious fanaticism involved the application of his reason as a responsible individual.
1. It is the ‘act’ of an individual and ‘not his intent’ which forms the basis for determining criminality within him. In other words, criminologists are concerned with the ‘act’ of the criminal rather than his ‘intent’. Still, they could never think that there could be something like crime causation.
2. The classical writers accepted punishment as a principal method of infliction of pain, humiliation and disgrace to create ‘fear’ in man to control his behavior.
3. The propounders of this school, however, considered prevention of crime more important than the punishment for it. They therefore, stressed on the need for a Criminal Code in France, Germany and Italy to systematize punishment for forbidden acts. Thus the real contribution of classical school of criminology lies in the fact that it underlined the need for a well defined criminal justice system.
4. The advocates of classical school supported the right of the State to punish the offenders in the interest of public security. Relying on the hedonistic principle of pain and pleasure, they pointed out that individualization was to be awarded keeping in view the pleasure derived by the criminal from the crime and the pain caused to the victim from it. They, however, pleaded for equalization of justice which meant equal punishment for the same offence.
5. The exponents of classical school further believed that the criminal law primarily rests on positive sanctions. They were against the use of arbitrary powers of Judges. In their opinion the Judges should limit their verdicts strictly within the confines of law. They also abhorred torturous punishments.
Thus classical school propounded by Beccaria came into existence as a result of the influence of writings of Montesquieu, Hume, Bacon and Rousseau. His famous work ‘Essays on Crime and Punishment’ received wide acclamation all over Europe and gave a fillip to a new criminological thinking in the contemporary west. He sought to humanize the criminal law by insisting on natural rights of human beings. He raised his voice against severe punishment, torture and death penalty. Beccaria’s views on crime and punishment were also supported by Voltaire as a result of which a number of European countries redrafted their penal codes mitigating the rigorous barbaric punishments and some of them even went to the extent of abolishing capital punishment from their Penal Codes.
Major Shortcomings of the Classical School
The contribution of classical school to the development of rationalized criminological thinking was by no means less important, but it had its own pitfalls.
- The classical school proceeded on an abstract presumption of free will and relied solely on the act (i.e., the crime) without devoting any attention to the state of mind of the criminal.
- It erred in prescribing equal punishment for same offence thus making no distinction between first offenders and habitual criminals and varying degrees of gravity of the offence.
However, the greatest achievement of this school of criminology lies in the fact that it suggested a substantial criminal policy which was easy to administer without resort to the imposition of arbitrary punishment. It goes to the credit of Beccaria who denounced the earlier concepts of crime and criminals which were based on religious fallacies and myths and shifted emphasis on the need for concentrating on the personality of an offender in order to determine his guilt and punishment. Beccaria’s views provided a background for the subsequent criminologists to come out with a rationalized theory of crime causation which eventually led the foundation of the modern criminology and penology.
In criminology, the Neo-Classical School continues the traditions of the Classical School within the framework of Right Realism. Hence, the utilitarianism of Jeremy Bentham and Cesare Beccaria remains a relevant social philosophy in policy term for using punishment as a deterrent through law enforcement, the courts, and imprisonment
The ‘free will’ theory of classical school did not survive for long. It was soon realized that the exponents of classical school faultered in their approach in ignoring the individual differences under certain situations and treating first offenders and the habitual alike on the basis of similarity of act or crime. The neo-classists asserted that certain categories of offenders such as minors, idiots, insane or incompetent had to be treated leniently in matters of punishment irrespective of the similarity of their criminal act because these persons were incapable of appreciating the difference between right and wrong. This tendency of neo-classists to distinguish criminals according to their mental depravity was indeed a progressive step inasmuch as it emphasized the need for modifying the classical view. Thus the contribution of neo-classical thought to the science of criminology has its own merits.
When crime and recidivism are perceived to be a problem, the first political reaction is to call for increased policing, stiffer penalties, and increased monitoring and surveillance for those released on parole. Intuitively, politicians see a correlation between the certainty and severity of punishment, and the choice whether to commit crime. The practical intention has always been to deter and, if that failed, to keep society safer for the longest possible period of time by locking the habitual offenders away in prisons (see Wilson). From the earliest theorists, the arguments were based on morality and social utility, and it was not until comparatively recently that there has been empirical research to determine whether punishment is an effective deterrent.
The main tenets of neo-classical school of criminology can be summarized as follows
1.Neo-classists approached the study of criminology on scientific lines by recognizing that certain extenuating situations or mental disorders deprive a person of his normal capacity to control his conduct. Thus they justified mitigation of equal punishment in cases of certain psychopathic offenders. Commenting on this point, Prof. Gillin observed that neo-classists represent a reaction against the severity of classical view of equal punishment for the same offence.
1. Neo-classists were the first in point of time to bring out a distinction between the first offenders and the recidivists. They supported individualization of offender a treatment methods which required the punishment to suit the psychopathic circumstances of the accused. Thus although the ‘act’ or the ‘crime’ still remained the sole determining factor for adjudging criminality without any regard to the intent, yet the neo-classical school focused at least some attention on mental causation indirectly.
2. The advocates of this school started with the basic assumption that man acting on reason and intelligence is a self-determining person and therefore, is responsible for his conduct. But those lacking normal intelligence or having some mental depravity are irresponsible to their conduct as they do not possess the capacity of distinguishing between good or bad and therefore should be treated differently from the responsible offenders.
3. Though the neo-classists recommended lenient treatment for “irresponsible” or mentally depraved criminals on account of their incapacity to resist criminal tendency but they certainly believed that all criminals, whether responsible or irresponsible, must be kept segregated from the society.
4. It is significant to note that distinction between responsibility and irresponsibility, that is the sanity and insanity of the criminals as suggested by neo-classical school of criminology paved way to subsequent formulation of different correctional institutions such as parole, probation, reformatories, open-air camps etc. in the administration of criminal justice. This is through this school that attention of criminologists was drawn for the first time towards the fact that all crimes do have a cause. It must, however be noted that though this causation was initially confined to psychopathy or psychology but was later expanded further and finally the positivists succeeded in establishing reasonable relationship between crime and environment of the criminal.
5. Neo-classists adopted subjective approach to criminology and concentrated their attention on the conditions under which an individual commits crime.
Thus it would be seen that the main contribution of neo-classical school of criminology lies in the fact that it came out with certain concessions in the ‘free will’ theory of classical school and suggested that an individual might commit criminal acts due to certain extenuating circumstances which should be duly taken into consideration at the time of awarding punishment. Therefore, besides the criminal act as such, the personality of the criminal as a whole, namely, his antecedents, motives, previous life-history, general character, etc., should not be lost sight of in assessing his guilt. It may be noted that the origin of jury system in criminal jurisprudence is essentially an outcome of the reaction of neo-classical approach towards the treatment of offenders.
As to the shortcomings of neo-classical school of criminology, it must be stated that the exponents of this theory believed that the criminal, whether responsible or irresponsible, is a menace to society and therefore, needs to be eliminated from it.
The term ‘Criminal Justice System’ is relatively new. It became popular only in 1967, with the publication of the report of the President’s Commission on Law Enforcement and Administration of Justice, The Challenge of Crime in the Free Society. The discovery that various ways of dealing with law breaking form a system was itself the result of criminological research. Research into the functioning of the system and its component parts, as well as into the work of functionaries within the system, has provided many insights over the last few decades.
Scientists who study the criminal justice system are frequently referred to as ‘criminal justice specialists.’ This term suggests a separation between criminology and criminal justice. In fact, the two fields are closely interwoven. Scholars of both disciplines use the same scientific research methods. They have received the same rigorous education, and they pursue the same goals. Both fields rely on the cooperation of many other disciplines, including sociology, psychology, political science, law, economics, management, and education. Their origins, however, do differ. Criminology has its roots in European scholarship, though it has undergone refinements, largely under the influence of American sociology. Criminal justice is a recent American innovation.
The two fields are also distinguished by a difference in focus. Criminology generally focuses on scientific studies of crime and criminality, whereas criminal justice focuses on scientific studies of decision-making processes, operations, and such justice-related concerns as the efficiency of police, courts, and corrective systems; the just treatment of offenders; the needs of victims; and the effects of changes in sentencing philosophy.
Historical Development of Criminology
The history of primitive societies and early medieval period reveals that human thinking in those days was predominated by religious mysticism and all human relations were regulated through myths, superstitious and religious tenets prevailing in a particular society. This in other words, meant that little attention was devoted to the motive, environment and psychology of the offender in the causation of crime. Moreover, in absence of any definite principle for the guidance of those who were concerned with the criminal justice administration, punishments were often haphazard, arbitrary and irrational. This situation prevailed until the end of seventeenth century. Thereafter, with the change in human thinking and evolution of modern society, certain social reformers took up the cause of criminals and devoted their attention to analysis of crime causation. This finally led to the emergence of criminology as a branch of knowledge through development of different schools of criminology.
The theoretical dimension of criminology has a long history and ideas about the causes of crime can be found in philosophical thought over two thousand years ago. For example, in Politics, Plato’s student, Aristotle (384-322 B.C.), stated that “poverty engenders rebellion and crime (Quinney 1970).” Religious scholars focused on causes as diverse as natural human need, deadly sins, and the corrupting influence of Satan and other demons. The validity of such theories was founded in religious authority and they were not viewed as theories, subject to verification through any form of systematic observation, measurement and analysis.
Rational, naturalistic philosophies about people and society grew in prominence during the 18 century. Enlightenment philosophers such as Montesquieu, Voltaire, Cesare Beccaria and Jeremy Bentham criticized political and legal institutions and advocated social reforms based on the assumption that people were rational, deliberative beings. Such ideas constituted the first major school of organized, “naturalistic” thought about criminal law, criminality, and appropriate responses to crime--the Classical School. Such perspectives were called “naturalistic” because they constructed theories locating the causes of crime in natural characteristics of human beings as opposed to “supernatural” theories emphasizing demonic causes. Classical theorists assumed that most people were capable of rational calculation of gains and costs and that criminality was a choice. Laws were to be designed and enforced based on that principle. Contemporary “deterrence theory,” “rational choice theory,” and “social learning theory” in criminology incorporate these same assumptions.
The origins of a more systematic criminology, however, are located in the late-eighteenth-century writings of those who sought to reform criminal justice and penal systems that they perceived as cruel, inhuman, and arbitrary. These old systems applied the law unequally, were subject to great corruption, and often used torture and the death penalty indiscriminately.
The leading theorist of the classical school of criminology, the Italian CESARE bonesano beccaria (1738–94), argued that the law must apply equally to all, and that punishments for specific crimes should be standardized by legislatures, thus avoiding judicial abuses of power. Both Beccaria and another classical theorist, the Englishman Jeremy Bentham (1748–1832), argued that people are rational beings who exercise free will in making choices. Beccaria and Bentham understood the dominant motive in making choices to be the seeking of pleasure and the avoidance of pain. Thus, they argued that a punishment should fit the crime in such a way that the pain involved in potential punishment would be greater than any pleasure derived from committing the crime. The writings of these theorists led to greater codification and standardization of European and U.S. laws.
Criminologists of the early nineteenth century argued that legal punishments that had been created under the guidance of the classical school did not sufficiently consider the widely varying circumstances of those who found themselves in the gears of the criminal justice system. Accordingly, they proposed that those who could not distinguish right from wrong, particularly children and mentally ill persons, should be exempted from the punishments that were normally meted out to mentally capable adults who had committed the same crimes. Along with the contributions of a later generation of criminologists, known as the positivists, such writers argued that the punishment should fit the criminal, not the crime.
Later in the nineteenth century, the positivist school of criminology brought a scientific approach to criminology, including findings from biology and medicine. The leading figure of this school was the Italian Cesare Lombroso (1836–1909). Influenced by Charles R. Darwin's theory of evolution, Lombroso measured the physical features of prison inmates and concluded that criminal behavior correlated with specific bodily characteristics, particularly cranial, skeletal, and neurological malformations. According to Lombroso, biology created a criminal class among the human population. Subsequent generations of criminologists have disagreed harshly with Lombroso's conclusions on this matter. However, Lombroso had a more lasting effect on criminology with other findings that emphasized the multiple causes of crime, including environmental causes that were not biologically determined. He was also a pioneer of the case-study approach to criminology.
Other late-nineteenth-century developments in criminology included the work of statisticians of the cartographic school, who analyzed data on population and crime. These included Lambert Adolphe Quetelet, (1796– 1874) of France and André Michel Guerry, of Belgium. Both of these researchers compiled detailed, statistical information relating to crime and also attempted to identify the circumstances that predisposed people to commit crimes.
The writings of French sociologist Emile Durkheim (1858–1917) also exerted a great influence on criminology. Durkheim advanced the hypothesis that criminal behavior is a normal part of all societies. No society, he argued, can ever have complete uniformity of moral consciousness. All societies must permit some deviancy, including criminal deviancy, or they will stagnate. He saw the criminal as an acceptable human being and one of the prices that a society pays for freedom.
Durkheim also theorized about the ways in which modern, industrial societies differ from nonindustrial ones. Industrial societies are not as effective at producing what Durkheim called a collective conscience that effectively controls the behavior of individuals. Individuals in industrial societies are more likely to exhibit what Durkheim called anomie—a Greek word meaning "without norms." Consequently, modern societies have had to develop specialized laws and criminal justice systems that were not necessary in early societies to control behavior.
Early efforts to organize criminologists in the United States attracted law enforcement officials and others who were interested in the criminal justice system. In 1941, a group of individuals in California organized for the purpose of improving police training and the standardization of police-training curricula. In 1946, this movement developed into the establishment of the Society for the Advancement of Criminology, which changed its name to the American Society of Criminology in 1957. Initial efforts of this organization focused upon scientific crime detection, investigation, and identification; crime prevention, public safety, and security; law enforcement administration; administration of criminal justice; traffic administration; and probation.
The American Society of Criminology has since attracted thousands of members including academics, practitioners, and students of the criminal justice system. Studies of criminology include both the theoretical and the pragmatic, and some combined elements of both. Although some aspects of criminology as a science are still considered radical, others have developed as standards in the study of crime and criminal justice.
Criminology maybe defined as “the scientific study of the causation, correction, and prevention of crime”. Criminology (from Latin crīmen, "accusation"; and Greek -λογία, -logia) is the social science approach to the study of crime as an individual and social phenomenon. Although contemporary definitions vary in the exact words used, there is considerable consensus that criminology involves the application of the “scientific method” to the study of variation in criminal law, the causes of crime, and reactions to crime (Akers 2000).
Criminological research areas include the incidence and forms of crime as well as its causes and consequences. They also include social and governmental regulations and reactions to crime. Criminology is an interdisciplinary field in the behavioral sciences, drawing especially on the research of sociologists and psychologists, as well as on writings in law. An important way to analyze data is to look at quantitative methods in criminology. In 1885, Italian law professor Raffaele Garofalo coined the term "criminology" (in Italian, criminologia). The French anthropologist Paul Topinard used it for the first time in French (criminologie) around the same time.
Nature and Scope of Criminology
Criminology is an inter-disciplinary field of study, involving scholars and practitioners representing a wide range of behavioral and social sciences as well as numerous natural sciences. Sociologists played a major role in defining and developing the field of study and criminology emerged as an academic discipline housed in sociology programs. However, with the establishment of schools of criminology and the proliferation of academic departments and programs concentrating specifically on crime and justice in the last half of the 20 century, the criminology emerged as a distinct professional field with a broad, interdisciplinary focus and a shared commitment to generating knowledge through systematic research.
One ultimate goal of criminology has been the development of theories expressed with sufficient precision that they can be tested, using data collected in a manner that allows verification and replication.
As a subdivision of the larger field of sociology, criminology draws on psychology, economics, anthropology, psychiatry, biology, statistics, and other disciplines to explain the causes and prevention of criminal behavior. Subdivisions of criminology include penology, the study of prisons and prison systems; bio-criminology, the study of the biological basis of criminal behavior; feminist criminology, the study of women and crime; and criminalistics, the study of crime detection, which is related to the field of Forensic Science. Much research related to criminology has focused on the biological basis of criminal behavior. In fact, bio-criminology, attempts to explore the biological basis of criminal behavior. Research in this area has focused on chromosomal abnormalities, hormonal and brain chemical imbalances, diet, neurological conditions, drugs, and alcohol as variables that contribute to criminal behavior.
Criminology has historically played a reforming role in relation to Criminal Law and the criminal justice system. As an applied discipline, it has produced findings that have influenced legislators, judges, prosecutors, lawyers, Probation officers, and prison officials, prompting them to better understand crime and criminals and to develop better and more human sentences and treatments for criminal behavior.
Criminologists also study a host of other issues related to crime and the law. These include studies of the Victims of Crime, focusing upon their relations to the criminal, and their role as potential causal agents in crime; juvenile delinquency and its correction; and the media and their relation to crime, including the influence of Pornography.
Significance of Criminology
The true effect of criminology upon practices in the criminal justice system is still subject to question. Although a number of commentators have noted that studies in criminology have led to significant changes among criminal laws in the various states, other critics have suggested that studies in criminology have not directly led to a reduction of crime.
In Mc Cleskey v. Kemp, 481 U.S. 279, 107 S. Ct. 1756, 95 L. Ed. 2d 262 (1987), an individual who had been sentenced to death for a murder in Georgia demonstrated to the U.S. Supreme Court that a criminologist's study showed that the race of individuals in that state impacted whether the defendant was sentenced to life or to death. The study demonstrated that a black defendant who had killed a white victim was four times more likely to be sentenced to death than was a defendant who had killed a black victim. The defendant claimed that the study demonstrated that the state of Georgia had violated his rights under the equal protection clause of the Fourteenth Amendment, as well as under the Eigth Amendment's protection against Cruel and Unusual Punishment.
The high court disagreed. Although the majority did question the validity of the findings, of study's it held that the study did not establish that officials in Georgia had acted with discriminatory purpose, and that it did not establish that racial bias had affected the officials' decisions with respect to the death sentence. Accordingly, the death sentence violated neither the Fourteenth Amendment nor the Eighth Amendment.
Criminology has had more of an effect when states and the federal government consider new criminal laws and sentencing provisions. Criminologists' theories are also often debated in the context of the death penalty and crime control acts among legislators and policymakers. In this light, criminology is perhaps not at the forefront of the development of the criminal justice system, but it most certainly works in the background in the determination of criminal justice policies.
Sociology and Criminology uring the twentieth century, the sociological approach to criminology became the most influential approach. Sociology is the study of social behavior, systems, and structures. In relation to criminology, it may be divided into social-structural and social-process approaches.
Social-Structural Criminology Social-structural approaches to criminology examine the way in which social situations and structures influence or relate to criminal behavior. An early example of this approach, the ecological school of criminology, was developed in the 1920s and 1930s at the University of Chicago. It seeks to explain crime's relationship to social and environmental change. For example, it attempts to describe why certain areas of a city will have a tendency to attract crime and also have less-vigorous police enforcement. Researchers have found that urban areas in transition from residential to business uses are most often targeted by criminals. Such communities often have disorganized social networks that foster a weaker sense of social standards.
Another social-structural approach is the conflict school of criminology. It traces its roots to Marxist theories that saw crime as ultimately a product of conflict between different classes under the system of capitalism. Criminology conflict theory suggests that the laws of society emerge out of conflict rather than out of consensus. It holds that laws are made by the group that is in power, to control those who are not in power. Conflict theorists propose, as do other theorists, that those who commit crimes are not fundamentally different from the rest of the population. They call the idea that society may be clearly divided into criminals and non-criminals a dualistic fallacy, or a misguided notion. These theorists maintain, instead, that the determination of whether someone is a criminal or not often depends on the way society reacts to those who deviate from accepted norms. Many conflict theorists and others argue that minorities and poor people are more quickly labeled as criminals than are members of the majority and wealthy individuals.
Critical criminology, also called radical criminology, shares with conflict criminology a debt to Marxism. It came into prominence in the early 1970s and attempted to explain contemporary social upheavals. Critical criminology relies on economic explanations of behavior and argues that economic and social inequalities cause criminal behavior. It focuses less on the study of individual criminals, and advances the belief that existing crime cannot be eliminated within the capitalist system. It also asserts, like the conflict school, that law has an inherent bias in favor of the upper or ruling class, and that the state and its legal system exist to advance the interests of the ruling class. Critical criminologists argue that corporate, political, and environmental crime are underreported and inadequately addressed in the current criminal justice system.
Feminist criminology emphasizes the subordinate position of women in society. According to feminist criminologists, women remain in a position of inferiority that has not been fully rectified by changes in the law during the late twentieth century. Feminist criminology also explores the ways in which women's criminal behavior is related to their objectification as commodities in the sex industry.
Others using the social-structural approach have studied Gangs, juvenile delinquency, and the relationship between family structure and criminal behavior.
Social-Process Criminology Social-process criminology theories attempt to explain how people become criminals. These theories developed through recognition of the fact that not all people who are exposed to the same social-structural conditions become criminals. They focus on criminal behavior as learned behavior.
Edwin H. Sutherland (1883–1950), a U.S. sociologist and criminologist who first presented his ideas in the 1920s and 1930s, advanced the theory of differential association to explain criminal behavior. He emphasized that criminal behavior is learned in interaction with others, usually in small groups, and that criminals learn to favor criminal behavior over noncriminal behavior through association with both forms of behavior in different degrees. As Sutherland wrote, "When persons become criminal, they do so because of contacts with criminal patterns and also because of isolation from anti-criminal patterns." Although his theory has been greatly influential, Sutherland himself admitted that it did not satisfactorily explain all criminal behavior. Later theorists have modified his approach in an attempt to correct its shortcomings.
Political CriminologyPolitical criminology is similar to the other camps in this area. It involves study into the forces that determine how, why, and with what consequences societies chose to address criminals and crime in general. Those who are involved with political criminology focus on the causes of crime, the nature of crime, the social and political meanings that attach to crime, and crime-control policies, including the study of the bases upon which crime and punishment is committed and the choices made by the principals in criminal justice.
Although the theories of political criminology and conflict criminology overlap to some extent, political criminologists deny that the terms are interchangeable. The primary focus points in the new movement of political criminology similarly overlap with other theories, including the concerns and ramifications of street crime and the distribution of power in crime-control strategies. This movement has largely been a loose, academic effort.
Definitions of Important Terms
Deviance: Deviance is a violation of social norms defining appropriate or proper behaviour under particular set of circumstances. Deviance often includes criminal acts. Deviance is also referred to as deviant behaviour. It is behavior that is sharply different from a customary, traditional, or generally accepted standard.
Delinquency: Delinquent means one who fails to do that which is required by law or by duty when such failure is minor in nature. A delinquent is often used to refer to a juvenile who commits a minor criminal act—juvenile delinquents.
Juvenile Delinquency: It refers to criminal acts performed by juveniles. Most legal systems prescribe specific procedures for dealing with juveniles, such as juvenile detention centers. Juvenile delinquency may refer to either violent or non-violent crime committed by persons who are (usually) under the age of eighteen and are still considered to be a minor. There is much debate about whether or not such a child should be held criminally responsible for his or her own actions.
Crime: Crime is an ‘act’ or ‘omission’ which is prohibited by criminal law. Each State sets out a limited series of acts (crimes) which are prohibited and punishes the commission of these acts by fine, imprisonment or some other form of punishment. In exceptional cases, an omission to act can constitute a crime, such as failing to give assistance to a person in peril or failing to report a case of child abuse.
Inter-Relation Between Criminology, Penology and Criminal Law
It must be reiterated that criminology is one of the branches of criminal science which is concerned with social study of crimes and criminal behavior. It aims at discovering the causes of criminality and effective measures to combat crimes. It also deals with custody, treatment, prevention and control of crimes which, for the purposes of this study, is termed as penology. The criminal policies postulated by these twin sister branches (i.e., criminology and penology) are implemented through the agency of criminal law. Thus for the sake of convenient study the entire subject may be classified under the following heads:
It is generally said that criminal law is an index of civilization because it is sensitive to the changes in social structure and reflects mental fiber of a given society. This is why Prof. Friedman calls it a barometer of moral thinking. According to Wechsler, “crime is a formal social condemnation of forbidden conduct buttressed by sanction calculated to prevent it”. Criminologists are thus confronted with three major problems, namely:
- What conducts should be forbidden and an inquiry into the effect of environment on these conducts ;
- What condemnation is appropriate in such cases ; and
- What kinds of sanctions are best to prevent these conducts?
It is thus evident that criminology, penology and criminal law are inter-related and one cannot really function without the other. The formulation of criminal policy essentially depends on crime causation and factors correlated therewith while its implementation is achieved through the instrumentality of criminal law. It has been rightly observed by Prof. Sellin that the object of criminology is to study the sequence of law-making, law-breaking and reaction to law-breaking from the point of view of the efficacy of law as the method of control. According to Donald Taft, criminology is the scientific analysis and observation of crime and criminals whereas penology is concerned with the punishment and treatment of offenders. In his view, the development of criminology has been much later than that of penology because in early periods the emphasis was on treatment of offenders rather than scientific investigation into the causation of crime.
The study of legal transplantation is important in customary law course since legal transplantation often takes place in developing countries such as Ethiopia with diverse customary law systems. Often the transplanted laws come for a variety of reasons from advanced legal systems. Such transplanted laws officially or on paper question the validity of customary laws. In fact the customary laws continue to be little affected. The adoption of western laws presents the interaction between two sets of laws with quite distinct assumptions and methods. So the study of transplanted laws, its history, reasons and theories is significant in customary law course.
Legal transplantation: Legal transplantation is also known by other names. These are legal borrowing, legal importation, legal reception and legal taking. Legal transplantation refers to the transfer of rules, principles and legal concepts from one or more than one legal system to another legal system. The legal system borrowing laws can be called the recipient system while the legal system lending laws can be called the donor legal system. The lending system may be an existing legal system or a past legal system. Countries, for example, borrowed from the Roman legal system that ceased to exist centuries ago. The recipient legal system should be an existing one or a system at its initial stage of development. Legal borrowing can involve a single legal rule; it can be a massive borrowing. For instance, Ethiopia borrowed large quantity of laws in late 1950`s and 1960`s. At the end of 19th century, Japan received large quantity of laws from Germany. Small-scale borrowings takes place everyday. Appreciating legal transplantation is important to conduct legal research, as it enables you trace the right sources of the laws of a given country.
Factors for legal transplantation: Can you identify and explain the factors that may drive a country to receive laws from another system? Do you think that a country borrows laws based on its free decision alone? Do you think that there are cases where a country may be compelled to take laws from another system? A recipient country may borrow laws since they are accessible in terms of language, the laws are found out to be meritorious in terms of organizations, the laws were transplanted to other systems and found out to be fruitful and when the recipient country decided to modernize its legal system. A country may adopt foreign laws as a result of migration or commercial intercourse. A country may adopt the laws of another country because the important elites are attached to the legal system and education of the donor country. A country may be forced to accept the laws of other systems owing to war or conquest or colonization or physiological pressure. Can you give concrete examples for each of these reasons? Is it possible to say, for example, that many countries in Africa and Asia received laws form France and England as a result of colonization? Is it possible to say that the socialist laws were spread to several countries all over the world as a result of ideological threat from the ex-USSR? Can we say that Islamic law was propagated to the other parts of the world through conquest, migration and commercial interaction?
The development of legal transplantation: Legal history indicates that legal transplantation has been rampant. The Greek gave important legal theories to the Romans; the Romans borrowed from the Greek legal system some conceptions of laws. The Romans converted the idealism of the Greek into practical legal rules. The Romans gave principles of private law to European countries such as France and Germany. France added to the laws it received from the Romans some theories and techniques. France then codified its laws in early 19th century. France propagated its laws first to neighboring European countries. Later, France transplanted its codes to Asia and Africa through the instrumentality of colonialism. Some countries, such as countries in Latin America, received laws from France voluntarily. England also transported its laws to all over the world via colonialism. Eastern European countries received laws from the civil law countries. After the end of Second World War, however, East European countries were forced to adopt socialist system of laws. Again after the 1980`s, these countries went back to the civil law tradition owing to external pressures. The socialist legal system was developed as an idea in 19th century and early 20th century translated into practice in Russia. Russia, later USSR, became the mastermind behind the spread of socialist laws to Asia and Africa in some cases through force and sometimes through pressure.
The Islamic legal system originated as an idea in the Middle East in the 7th c AD, and then taken to the coastal areas of Africa, Middle East and Asia. Now a kind of Islamic belt is created. The spread of the Islamic legal system has been attributed to a combination of the following factors: conquest, migration and commerce. Do you realize form these descriptions that legal systems develop through borrowing? Do you appreciate that legal borrowing has implied power relations in the sense that laws usually flow form powerful legal systems to less powerful ones? Do you agree with the proposition that legal transplantation can take place faster in the cases where the recipient system has gaps?
History of Legal Transplantation: Consider the origin, development, spread and decline of the Roman law in the following few paragraphs. The Corpus Juris Civilis is the name of the code developed by a roman emperor known as Justinian. The Corpus Juris Civilis of Justinian was not restricted to Raman civil law. It included much that had to do with the power of the emperor, the organization of the empire, and a variety of other matters that lawyers today would classify as public law.
The Germanic tribes, called the Barbarians, invaded and controlled the Western part of the Roman Empire. With the collapse and the invasion of the Roman Empire, the CORUPS JURIS CIVILIS became inapplicable. The invaders applied cruder, less sophisticated versions of the Roman civil law to the peoples of the Italian Peninsula. The invaders also brought with them their own Germanic legal customs, which under their rule that the law of a person's nationality followed him wherever he/she went, were applied to themselves but not to those they had conquered. Even so, a fusion of some Germanic tribal laws with indigenous Roman legal institutions did begin to take place in parts of Italian southern France, and the Iberian Peninsula.
As light returned to Europe, and Europeans regained control of the Mediterranean and as the Renaissance began, an intellectual and scholarly interest in law emerged. What civil lawyers commonly refer to as "the revival of Roman law" is generally conceded to have had its beginning in Bologna, Italy late in the eleventh century. It was at Bologna that the first modern European University appeared, and law was a major object of study. But the law that was studied was not the body of the rules enacted or customarily followed by local towns, merchants' guildes, or petty sovereigns. The law studied was the CORPUS JURIS CIVILIS of Justinian.
Within a short time, Bologna and the other universities of northern Italy became the legal center of the Western world. Students came from all over Europe to study the law as taught in the Italian universities. The law studied was the CORPUS JURIS CIVILLIS, and the common language of study was Latin. There was a succession of schools teaching about the proper way to study and explanting the CORUPS JURIS CIVILIS. Of special prominence, for both their views of the law and their styles of scholarship, were the groups of scholars known as the Glossators and the Commentators. They produced a great body literature, which itself became the object of study and discussion and came to carry great authority. Those who have studied in Bologna returned to their nations and established universities where they also taught and studied the law of the CORPUS JURIS CIVILIS according to the style of the Glossators and Commentators (Those persons who were experts in the Corpus Juris Civilis). In this way, the Roman civil law and the works of the Glossators and Commentators became the basis of the common law of Europe, which is actually called the jus commune by legal historians. There was a common body of law and witting about law, a common legal language and a common method of teaching and scholarship.
With the rise of the nation an state and the growth of the concept national sovereignty, particularly, form the 15th century, the age of the jus commune of a common law of Europe disappeared, and the period of the national law began. In some parts of Europe (e.g. Germany), the Roman civil law and the writings of the Belgian scholars were formally "received" as binding law (civil lawyers use the term "reception" to sum up the process by which the nation - states of the civil law world came to include the jus commune in their national legal systems). In other parts of Europe, the reception was less formal; the CORPUS JURIS CIVILIS and the works of the Glossators and Commentators were received and became of value as customary law. By one means or another many countries in Europe received the Roman Civil law. These countries are now the home of the civil law tradition.
Eventually, in the nineteenth century, the principal states of Western Europe adopted civil codes (as well as other codes) of which the French Code Napoleon of 1804 is the primary one. The subject matter of the civil codes was almost identical with the subject matter of the first three books of the Corpus Juris Civilis of Justinian and the Jus Commune of medieval Europe. The principal concepts were Roman and medieval common law in nature, and the organization and conceptual structure were similar.
Some Illustrations of Legal Transplantation
French law: French law spread first to Europe, then, to Africa, Asia and Latin America. The French codes transplanted to Europe primarily through military force. In most areas where the Code was introduced, it was embraced, and survived Napoleon’s personal downfall. The Battle of Waterloo did not end the application of the Code in Europe, particularly in western Germany, and Italy. In the Netherlands, the Code survived unaltered until 1838, whereas in Prussia the Code was gradually reintroduced. Even in areas where French rule had been unpopular, such as Spain, post-Napoleonic governments were held up to French standards for a codified law based on judicial equality. Following the restoration of the old order, a series of 1820 revolts in Naples, Piedmont and Spain were affected by demands for administrative reform. Within France itself, the Code survived almost unaltered for more than 150 years, and even today has not been fundamentally changed. In many ways, the Code was the most enduring legacy of the French Revolution.
Latin America received the French codes primarily because of its technical merits and as a result of the reaction to the hated Spanish and Portuguese colonial rules. Latin American countries got independence from Spain in early 19th century. These newly founded states needed national and unifying Civil Codes; the only available model was the French code Civil and Spanish law was out of the question since it was the law of the previous colonial power and since it was neither codified nor uniform even in Spain where local customary laws survived. The code civil was a product of the great Revolution, rooted in a world of ideas on which the Latin Americans had frequently drawn to justify their own struggles for independence. In its compactness and clarity of phrase, the Code Civil was far ahead of any other mode. And furthermore, the code was so full of traditional concepts and ideas especially from Roman law, that its reception was not a deviation from the legal institutions known to the Spanish and Portuguese settlers. Some countries in Asia and Africa received French codes due to the existence of gaps and the force of French colonialism.
The code had such a wide influence because it was the Code of the French Empire whose military powers, backed by a brilliantly integrated civilization, made such a deep impression on people not only during its brief life but many years after it was over. The reception of the French Civil Code is attributable not only to the political power of the French Empire, or to the spiritual influence of French civilization, but also in a great measure to the merits of the Code Civil itself. In the 19th century the Code enjoyed intellectual authority and an almost supernatural appeal as the Code of the Great Revolution, which had abolished the ancient regime. The Code of Napoleon also produced for the first time legal unity and equality for the citizens of a centrally organized national state. The spread of the code civil throughout the world was greatly helped by its admirable language and the easy flexibility of its expression, in brief, by its very quality.
German law: The German codes were not transported so extensively as the French codes. They were transplanted at the end of the 19th century to Japan and thereafter to some African countries. The reasons for the little expansion of the German codes lie in: the fact that Germany did have few colonies, as she was a latecomer to the scramble for different parts of the world. There are another reasons for this little influence. The codes were a bit sophisticated and complex. The third reason is that when the German codes were put in place at the beginning of the 20th century in Germany, many countries had already adopted laws from France and Great Britain. So there were then little legal gaps to be filled with in countries in Africa and elsewhere.
The English Law: Originated in 11th century, the English legal tradition expanded itself predominately through colonialism. The expression ``the sun never sets in the British Empire`` has attained the level of a saying. In addition to some other meanings, the expression suggests the extent of the spread of the British law. The English law was transported to North America (the United States of America, to Canada), Asia and Africa. England transported legal ideas, legal methods, and legal institutions of the common law to countries in these continents. Britain also carried the substantive and procedure laws to these parts of the world. These parts of the world also reflect the English court system and the structure of the legal profession.
Theories on legal transplantation: Do you support legal borrowing? Is there any problem in borrowing laws? There are three views on whether legal transplantation is a desirable one. The first approach is referred to as the custom theory. F. von Savigny, a German thinker of 19th century, elaborated this approach. The approach states that law and society have unique relationships. Law and society have inherent connections. There is a unique relationship between law and society means that laws are found in the common consciousness of the people. This common consciousness is manifested via the behaviors of individual members of that community. Laws are related to the identity of a society for which they are created. Further, every community is legally self-sufficient; whenever a society faces a legal problem, it creates legal rules. To this theory, if one attempts to take the laws of X community to Y community by way of legal borrowing, those transferred laws will inevitably fail. Legal transplantation will never solve the problems of a recipient legal system. If you know in advance that borrowed laws will fail, there is no reason to try it.
An opposing theory developed by Alan Watson holds the view that there is no unique connection between law and society. The theory also holds that no community has ever been legally self-sufficient in the history of mankind. The theory is named as legal engineering. This theory views laws as intangible instruments to achieve certain goals. As laws are tools, they can be taken to any society and used with success. Justifications are given for this position. The first reason is that the fact that legal transplantation has been very common in the history of legal systems shows that people have found it rational and useful. In the second place, if there are laws used by X Community and if Y community needs those laws, why should the latter be asked to reinvent those legal concepts and legal rules? It is rational for Y community to receive the laws of X community, which are tested in practice.
Thirdly, the custom theory assumes implicitly, but wrongly, that countries take the laws of other nations on the basis of their own free will. However, history gives us several examples where countries have borrowed laws as a result of external pressures.
The third theory attempts to strike a middle ground. In some areas of law, for example, in the area of commercial law, public law and technology law, there are gaps or traditional laws do not exist in developing countries. In such cases, developing countries do not have a choice; they have to borrow laws. In other areas of laws such as family law, inheritance laws and land laws, developing countries have longstanding laws. In the latter cases, it is difficult to transplant laws and even if transplantation takes place, the laws so transplanted will not be welcomed. This hybrid approach is articulated by Kahn-Freund. This position is also called the degree of transferability approach. This moderate approach to legal transplantation states that the contexts of the recipient country should be studied well before the borrowing of laws is made. Which theory do you support: the custom theory (also known as the historical theory), the social engineering theory (also called the instrumentalist theory) or the hybrid theory? And why?
More on the Theories of Legal Transplantation: The debate surrounding the theory of legal transplants has an almost unique beginning. In 1974 Alan Watson and Otto Kahn-Freund presented competing theories on the viability of legal transplants. The divergence of their views can be traced to the adoption of contrary propositions about the relationship between a state's law and its society.
Watson's theory begins with the proposition that there is no inherent relationship between law and the society in which it operates. He believes that law is largely autonomous, with a life of its own. Watson states that law develops by transplanting, not because some such rule was the inevitable consequence of the social structure and would have emerged even without a model to copy, but because the foreign rule was known to those with control over lawmaking, and they observed the apparent merits that could be derived from it.
Under Watson's theory, a legal rule is transplanted simply because it is a good idea. While Watson does not explicitly present a method to predict the viability of a proposed legal transplant, his writings provide guidance for such a method. He has further identified several factors that he believes must be considered to determine if the conditions are ripe for legal change by transplantation.
Kahn-Freund's disagreements with Watson begin with Watson's proposition that there is no inherent relationship between a state's law and its society. He claims that laws must not be separated from their purpose or from the circumstances in which they are made. Kahn-Freund argues "we cannot take for granted that rules or institutions are transplantable and believes that "there are degrees of transferability. Ewald summarizes Kahn-Freund's theory: "legal institutions may be more-or-less embedded in a nation's life, and therefore more-or-less readily transplantable from one legal system to another; but nevertheless at one end of the spectrum law is so deeply embedded that transplantation is in effect impossible.
Kahn-Freund identified a two-step process to determine the viability of a proposed transplant. The first step is to determine the relationship between the legal rule to be transplanted and the socio-political structure of the donor state. The second step involves comparing the socio-political environment of the donor and receiving state.
There is agreement, however, that the phrase "legal transplants" refers to the movement of legal norms or specific laws from one state to another during the process of law-making or legal reform. However, as a consequence of these conflicting propositions, their theories clash not only over how to evaluate the viability of a proposed legal transplant, but also over the general conclusions that can be reached about the usefulness of legal transplants as a tool of comparative scholars. Other scholars debate nearly every aspect of the legal transplant theory.
The study of legal transplants has been revived since the collapse of totalitarian rule. It is not. The issue of reception of foreign law has a considerable history and a remarkable topicality. As states around the globe implement dramatic political and economic changes in response to external and internal developments, their legal systems must be radically altered. In making these changes, legislators determine whether the borrowing of foreign law is feasible and if the international harmonization of a particular set of laws is viable. The argument is strong that there is no need for legislators to struggle to reinvent the wheel when others have dealt with the same issues. This argument is further supported by the fact that states are under pressure in the increasing interdependent world to create uniformity in law.
Massive successful borrowing is common in law. Borrowing is usually the major factor in legal change. Legal borrowing is of enormous importance in legal development. The borrowed rule does not operate in exactly the way it does in its country of origin. Since the time of late Roman Empire, they have been a major factor in legal change in the western world. England is no exception. Nor is the United States. Nor is Québec, even with its differences from the other provinces. The real issue is whether there should be a deliberate concerted effort, spear-headed perhaps by academics, to create a common law.
Beginning in 1991, Eastern Europe began the unprecedented effort of lawmaking on a grand scale. Almost overnight and at the request of their people and/or international organizations, former communist countries had to disassemble their political, economic, and legal institutions, which were based on centrally planned economies, to erect market-based democracies. Large sections of their old legal systems were now obsolete. The legislatures, however, were in most cases not free to form law and policy, as an "author is free to write a novel.`` The legal establishment of the communist era held influential posts and had contacts in the East and the West. They were ex officio called to lead reform efforts. In addition to them, foreign technical assistance arrived with ideas for ``legal surgery or reception of foreign law.`` A great number of foreign concepts (e.g., negotiable instruments of credit security devices) were introduced as if they were legal transplants to replace malfunctioning organs.
Comparative law was employed to decide either compatibility of foreign legal concepts or the merits of foreign legal systems and to provide an anthology of foreign legal ideas. Modern comparative legal methodology deals with legal transplants and reception of foreign law.
Legal penetration versus legal extension: Can you define legal penetration and legal extension? Do you think there is a gap between legal penetration and legal extension? If there is a gap between the two, in developed or undeveloped legal systems does it exist? Can you give reasons for the gap? As you may recall, legal penetration and legal extension are two of the elements of a legal system.
Legal extension: Those responsible for the importation of laws assume that the transplanted laws would affect human conducts possibly 100%. The assumption is based on the belief that the actors at the time of massive importation of laws desire that communities would adjust their behaviors to the imported laws. The actors who sponsored wholesome importation of laws plan that the imported laws would be implemented in all parts of the territory of the recipient country. For example, Ethiopia borrowed large scale laws in 1950`s and 1960`s; at that time, key personalities responsible for such project, it is assumed, expected that such laws would be accepted by the people; the people would shift their allegiance towards the new western oriented laws. Was that expectation realized?
Legal penetration: Legal extension refers to the extent to which people are actually following the imported laws. If legal extension is the aspiration, legal penetration is the reality. The question is whether people have actually adjusted their behaviors to the prescriptions of the imported laws or people are settling their social and economic conflicts pursuant to customary or religious laws?
In the context of developing countries such as Ethiopia that transplanted laws from the west there is a substantial gap between legal extension and legal penetration. The gap is not. We can cite examples. In Ethiopia, the imported family law, as incorporated in the Ethiopian Civil Code of 1960, states that spouses are equal, at the time of the creation of marriage, in the course of marriage and upon the dissolution of marriage. The husband and the wife should conclude marriage on their free consent. The husband and the wife should share household burdens equally. The husband and wife should divide the common property equally when their marriage comes to an end via dissolution. But the customary laws do not conform to these prescriptions of imported laws. You can take the case of land. Land since 1974, in Ethiopia, has been taken as a collective property. But under customary law some tribes still believe that land belongs to them. You can go on citing examples in the area of homicide law etc. In developed countries, on the other hand, people have sufficiently adjusted their conducts to the official laws.
Additional notes on legal extension and penetration: Like other social systems, a legal system has boundaries, and its components are interrelated by an internal logic. Legal extension and legal penetration help define the boundaries of the legal system.
In every society, much is left to custom and tradition, to religion, to informal negotiation and settlement, to social convention and peer influence. But the precise location of the boundaries between such non-legal matters and those of legal concern is unlikely to be always and precisely the same. The range of variation becomes particularly significant if we identify law with the official legal system, manned and operated by the state.
The degree to which a legal system seeks to penetrate and control social life is often quite different from the extent to which it actually does so. For example, a large number of Ethiopians live much of their lives relatively free of any substantial contact with the official legal system, which actually applies with most force to an urban middle class and rapidly loses its power as one moves down the socio-economic scale and away from the major cities. In a substantial number of such nations as Ethiopia, Kenya and Indonesia, the paper legal system will look much like that of France or Spain or Italy, or England or the United States of America. But if one looks at the actual role of law in the lives of important elements of the population the resemblance is only superficial. Thus along two dimensions, the aspects of social life that proposes to affect and the extent to which it actually does so, the scale of divergence of legal extension and legal penetration between societies can be, and often is, substantial. Both the social reach and the social grasp of the law are important variables. Legal penetration can take to mean the degree to which a rule, code, or law takes hold in a population. Key to closing the gap and improving penetration is better communication of law to the populace.
An empirical research carried out jointly by North Western-Haile Sellassie I University on the impact of the various laws on the Ethiopian society revealed that in the area of commercial law there exist some major conflicts in the mercato between law and practice. However, according to the researchers these conflicts appear due to lack of education or knowledge on the part of the merchants with respect to accounting practice and registration requirements and reluctance on the part of authorities to strictly enforce many harsh legal provisions. Little if any, evidence of resistance to these laws on the basis that they are "foreign" to customary way of doing things was detected.
While in the area of family law, it was found that despite the fact that the new law's attempt to break the customary practice of adoption by imposing a requirement of court approval, people are still continuing to adopt according to customary procedures without seeking court approval. Although no empirical research was made and we cannot positively say that the law is not being followed, it is very doubtful whether the Civil Code's requirement that a man be eighteen and a girl be fifteen years old in order to marry is being followed. In addition, one can cite the provisions dealing with names that up to now have been more or less a dead letter.
However, even though law as an instrument of achieving the desired results may be slow or weak in matters that affect basic drives and values, the mere fact of affirmation through acts of law and government as it expresses the public worth of one set of norms, of one sub-culture vis-à-vis those of others demonstrates which cultures have legitimacy and public domination and which do not is significant in itself. Thus the law aside from its effectiveness as an instrument can still have this symbolic effect, as an act, decision or gesture important in itself.
In developing societies such as Ethiopia, one can note a gap between a professed ideal and reality. For example, if one examines the Ethiopian Civil Code which is basically designed for the future Ethiopian society and tries to introduce new norms, one can note that some of its provisions are already out of tune with the times. One of the few mandates in the code regarding marital dispute resolution is that the parties should submit the disputes to arbitrators selected by them, Although this system of having relatives, neighbors and friends attempt to resolve a couple's dispute makes sense in the abstract, litigants with divorce petitions are coming to courts initially in increasing numbers in the cities. Under the Civil Code, family arbitration was a codified customary practice with its origins in rural Ethiopia before the rise of cities. In rural Ethiopia, family friends and community elders are quick to agree and often to volunteer to arbitrate marital disputes. But the city filled with migrants, where independence is fostered, it is relatively difficult to get acquaintances to devote the long hours, seldom compensated, that are required by family arbitrators. For this reason, then many couples approach a court to obtain an "order" that arbitrators, whom the parties select shall act in a dispute. It apparently puts the fear of authority into some otherwise reluctant candidates. The fact that the institution of family arbitration did not reduce the court congestion and the fact that divorces in present Ethiopia demand a degree of expertise not commonly possessed by most family arbitrators are some of the reasons that were given by Aklilu Wolde Amanual to justify his recommendation to abolish the institution. Constant legislative, judicial and administrative innovation are thus necessary to keep the law abreast of life and this process of innovation requires sociological investigation, for a mere guess of politicians combined with the skill of legal draftsman is not an adequate basis of law reform, nor is a more armchair analytical legal study of existing alternative rules.
Reasons for the Gap: What is the explanation for this gap? What are the possible reasons for the divergence between official legal prescriptions and the reality? We can simply speculate the answers as we do not have sufficient empirical data. The first possible reason is that the imported laws have not yet been sufficiently communicated to the people or to the governed because the laws are published in English and Amharic which millions of people in this country do not understand. Further, the laws have not been adequately communicated to the addressees since there is a huge percentage of illiterate population. The imported laws assume a literate society. Secondly, the state lacks the necessary resources to implement some of the provisions of the imported laws. The third reason is that the laws were defectively transplanted, which means the country’s context was not properly studied and the customary and religious laws were not given the place they deserved. As a result, the imported laws lacked the necessary legitimacy from the people. A related factor is that the pre-existing laws in Ethiopia are so deeply rooted in the fabric of the society that they could not easily and quickly be replaced. People are deeply attached to the customary laws. People have inherited dispute settlement mechanisms that were used by their ancestors. Simply stated the force of tradition is the reason behind the tacit resistance put up against imported laws. Finally, it is argued that the transplanted laws could not succeed since the assumption of the customary laws is different from the assumption of the western laws. The customary laws focus on the group; paramount importance is attached to the survival of the collectivity. On the other hand, it is opined that western laws are designed for and around the interests of an individual.