Criminal Justice Theory: An Introduction

By Roger Hopkins Burke | Go to book overview

5 The legal process in modern
society

The legal process in modern society has its foundations in the beginnings of modernity and was a response to the pre-modern world where there had been very little codified or written law and that which did exist was applied erratically, via judicial discretion and whim. This was all to change with the advent of the modern world and the introduction of increasingly bureaucratised criminal justice institutions and a rationalised process for responding to criminality.

The modern legal process has its origins in the work of Cesare Beccaria (1738– 1794) who we saw in the second chapter provided the theoretical foundations for the rational actor model of crime and criminal behaviour where it is proposed that individuals have free will and choose to become involved in criminal behaviour in the same way that they might choose any other course of action.1 In common with many of his contemporary intellectuals, and inspired by the social contact theories we encountered in the first chapter, Beccaria was strongly opposed to the many inconsistencies that existed in government and public affairs in the pre-modern era and his major text was essentially the first attempt at presenting a systematic, consistent and logical penal system and this can be summarised in the following 13 propositions. First, in order to escape social chaos, each member of society must surrender part of their liberty to the sovereignty of the nation-state. Second, to prevent or discourage individuals from infringing the liberty of others by breaking the law, it is necessary to introduce punishments for such breaches. Third, ‘the despotic spirit’, or the tendency to offend, is in everyone and we are all capable of criminal behaviour. Criminals are thus not a separate category of humanity from non-criminals. Fourth, available punishments should be decided by the legislature (or our elected representatives) and not by the courts. Fifth, the judiciary should only impose punishments established by the law in order to preserve consistency and the certainty of punishment. Sixth, the seriousness of the crime should be judged not by the intentions of the offender but by the harm that it does to society. Seventh, the punishment must be proportionate to the crime committed and should be set on a scale, or a tariff, with the most severe penalties corresponding to offences which caused the most harm to society. The most serious crimes are those which threaten the stability of society. Eighth, punishment which follows promptly after a crime is committed will be more just and effective. Ninth, punishment has to be certain to be effective. Tenth, laws and punishments have to be well

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Criminal Justice Theory: An Introduction
Table of contents

Table of contents

  • Criminal Justice Theory i
  • Title Page iii
  • Contents vii
  • 1- Introduction - Modernity and Criminal Justice 1
  • 2- Explaining Crime and Criminal Behaviour 29
  • 3- The Philosophy of Law and Legal Ethics 58
  • 4- Policing Modern Society 84
  • 5- The Legal Process in Modern Society 111
  • 6- Punishment in Modern Society 144
  • 7- Youth Justice in Modern Society 172
  • 8- Conclusions - The Future of Criminal Justice 194
  • Notes 215
  • References 222
  • Author Index 249
  • Subject Index 256
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