In this paper I will be discussing the classical school and the positive school and their relations to these current provisions 462.37., 462.39.-462.41 and 810 of the Canadian Criminal Code. After briefly summarizing these provisions, I will explain which law best represents the principles of the classical or positive school. Section 462.37 relates to classical school because it is a violation of the social contract. It also displays the use of fair procedure, proportional punishment and deterrence. It focuses on the deterrence of crime in comparison to the positive school where their primary goal is to identify features that influence crime and crime prevention. Section 810. accurately represents the positive school because it focuses on how the state can prevent the criminal from doing the crime. Section 462.37 outlines the Forfeiture of Proceeds of Crime where if one person is convicted of using the proceeds of crime to purchase goods or property, the state has the authority to confiscate it.(Criminal Code, 1985). This law favors the principles of the classical school in terms of deterrence, fair procedure and a violation of the social contract.
The social contract is an obligation where the sovereign has the duty to protect individuals living under their rule in return for the people to give up their individualistic powers and live accordingly. Using the proceeds of crime to purchase desired goods and property is a violation of the social contract, because the profits were accumulated through illegal criminal activity. Due to this committed offence, a proportional punishment must be applied on the delinquent. The purpose of having punishments is to deter the offender from repeating the same crime; specific deterrence. In order to have a lasting effect on the offender, punishments should be chosen so it inflicts fear on them and is equivalent to the harm done. (Beccaria. 1983).
Deterrence is based on a person who seeks pleasure and avoids pain, hedonistic decisions are made using the rational calculator. (Bentham, 1789). However, deterrence isn’t justified through the severity of the punishment, but through its certainty and proportionality. In section 462.37 of the criminal code the punishment is proportional to the harm done because the state is only disposing the goods and property that he/she purchased using the proceeds of crime. (Criminal Code, 1985). Everything else will remain intact, unless proven otherwise. In any case, the punishments in classical school should be mild enough to exceed the pleasure expected from a crime. Anything beyond proportional punishment is considered as sinister and completely useless. (Beccaria, 1983).
“Crimes are more effectively prevented by the certainty.” (Beccaria, 1983) What Beccaria means is that rather than having only a handful of offenders caught and severely punished, society should catch more offenders and effectively punish them in order to protect society. In violation of this law, the convicted offender must be found guilty through a humane trial. If the offender if found guilty through the fair procedure of the court, then a punishment can be applied on the accused. In the accused’s defense a trial is held to balance the probabilities of this offender using the proceeds of crime. Once the judge has made the decision of guilty, then Her majesty can dispose of the property and goods purchased through the proceeds of crime and otherwise in accordance to the law. Moreover, this section of the criminal code has a more classical scholiast approach because it allows for deterrence of crime through fair procedure and proportional punishment all because of the violation of the social contract. This law doesn’t apply the principles of the positive school because it does not act at the “root causes” of why the offender did the crime in the first place.
This law serves the purpose to deter crime and punishing the offender proportionally, whereas the positive focus more on determining the causes and influential factors crime. (Gabor, 2010). The Sureties to Keep the peace, section 810, exemplifies that if an individual feels unsafe because of another person that might harm them or anyone in close-relations to that person. The state has the right to convict this offender to a recognizance. The offender must keep the peace for a given time or else the state can dispose of their desirable goods; however, if peace has been kept, the offender is freed. (Criminal Code, 1985). This law follows the concepts of the positive school because the goal is to prevent crime in order to protect society from future dangers using a scientific approach. It also includes some aspects of Lombroso’s theory of the born criminal, using biological determinism.(Lombroso, 1911). The state’s obligation is to protect society’s individual members from harm. Their duty is to recognize harmful behavior and then take actions to prevent it using whatever is necessary.
In this provision the government has taken the duty to protect this individual who fears an attack coming by securing the offenders desirable goods and telling them to keep the peace or else they will dispose of the objects. The purpose of recognizance is to prevent future dangers the criminal might create. There is no need to wait for the actual crime to occur, but to take action to prevent it through the security and warning given to the offender to keep the peace. As seen in the law, the offence has not yet been committed; therefore, the victim relies on other factors to prove on reasonable grounds that this offender will harm the individual. Lombroso’s theory of the “Born Criminal” shows that the criminals are biologically different from non-criminals thus they can be identified using physical features. (Lombroso, 1911). For example, one would feel more comfortable being followed by a clean, well-shaved, harmless looking man rather than an ape-like looking improvised, homeless man. People unconsciously judge criminality based on the physical features of others. Biological determinism is the idea that crime is not committed through rational choice, but through other factors that they have little or no self-control over such as biological traits and features.
In the provision the state has the authority to send the offender to recognizance under reasonable grounds and a convincing argument by the victim. This argument may include judging a criminal based on Lombroso’s theory of born criminal and biological determinism. Moreover, the government also has the duty to identify the risk and future dangers that this offender might display. Balancing the probabilities that the offender will actually attack the victim is taken into consideration when deciding the extreme of the conditions and the time period the delinquent will go into recognizance. However, if the delinquent does not keep the peace in the given time, their punishment may range from a fine, to the disposal of secured goods. Knowing this, if a criminal has this unstoppable drive and passion for criminality, then something like a $5000 fine, will not stop them from doing so.
In most restraining orders what ends up happening is the victim is attacked or harmed anyways, because today people have an uncontrollable desire to commit crime. Criminals that have a compulsive desires for crimes act indifferently to the consequences because of biological influences or desperate situations.The law excludes the punishment of breaking a recognizance, but one can see that a positivist would use trial, not to determine the innocence or guilt of the offender but to ask the question, will they do this again? They would also want to know where the offender would attack, who and why? From a classical school perspective, only the guiltiness of the offender matters so they can apply proportional punishment. This provision doesn’t exemplify the classical school because it shows that offenders do not have control over their criminal behavior, thus making it irrational. This law is based on the priority to prevent crime and determine its causes rather than to deter crime and inflict punishments on the offender using a scientific approach.
Moreover, section 462.37 displays concepts of the classical school because it is considered a violation of the social contract; the deal that society gives up their power in return for safety. This provision also shows that this act was done out of rational choice by weighing out the consequences and benefits before committing to an action. Fair procedure is used to defend the rights of the offender; however, the main purpose is identify the guiltiness of the delinquent. Fair procedure in this law is shown when the state balances the probabilities of the proceeds of crime actually being used on his/her acquired property and goods. After the offender has been proved or has pleaded guilty, a proportional punishment is applied on him/her.
In this case, the proceeds earned through crime that the offender used to purchase goods and property will be confiscated, everything else will remain. Section 810. represents the positive school because it is an example of how the state would protect society. In this provision the crime has not happened yet, one is only worried and fears and attack. Biological determinism is used to identify who would pose a threat; this is based on physical features. This law also focuses on the risk and future dangers the offender might display. Securing valued items of the delinquent is a method used by the state to prevent a future danger from occurring and lessening the risks. In conclusion the classical school is more about the deterrence of crime whereas the positive school focuses on the prevention of crime.
Beccaria, C. (1983). An Essay on Crimes and Punishments. Francis T. Cullen, Robert Agnew
Pamela Wilcox (Eds.), Criminological Theory: Past to Present (pp. 27-29). New York: Oxford University
Bentham, J (1789). An Introduction to the Principle of Moral and Legislation. Joseph E. Jacoby
(Ed.), Classics of Criminology (pp.105-109). Long Grove, Illinois: Waveland Press.
Gabor, T (2010). Basics of Criminology (1st Ed.). Ottawa: McGraw Hill Ryerson.
Lombroso, C (1911). Criminal Man. Francis T. Cullen, Robert Agnew & Pamela Wilcox (Eds.),
Criminological Theory: Past to Present (pp. 27-29). New York: Oxford University Press.