Criminal Law and Justice

• A person can be arrested with a warrant issued by a magistrate or judge.
• The pre-classical school, also known as the demonological school, flourished in Europe during the 17th century, dominated by the church and religion.
• During the 17th century, the demonological theory prevailed in Europe, with the scientific explanation not given preference and the concept of crime being vague and based on superstitions and myths.
• Explanations for criminal behaviour were sought through spirits, demons and unknown power.
• The Neo-classical school and the positive school differed in their theory, with the former considering the physical and social environment where the individual was placed and the latter considering the anthropological or personality traits and the mental element to determine the criminal liability of the offender.
• Each theory in criminology considered different factors for the causation of crime and allotted punishments based on such reasons.
• Criminology is a well-recognised concept that helps in adjudicating the criminal liability of the offender.
• The different schools of criminology defined the term crime according to the rationality of the society then and devised theories based upon it.
• The Neo-classical school was greatly appreciated because of the evolution of the theory of differentiating the aforementioned categories from the other criminals on the basis of their mental depravity was indeed a progressive step.
• The shortcomings of neo-classical school of criminology believed that criminals are a nuisance to the society and therefore, must be expelled.
• The main exponents of this school were three eminent Italian criminologists, namely, Cesare Lombroso, Raffaele Garofalo and Enrico Terri and therefore, it is known as the Italian School of Criminology.
• Today’s jury system has inculcated the approach of the Neo-classists by granting leniency to the aforementioned classes.
• The main contribution of neo-classical school of criminology lies in the fact that the theory of classical school and suggested that an individual might commit criminal acts due to certain justifying circumstances and such situations must be taken under consideration while discharging the criminal liability.
• The Positivist School focused on the criminal and the various reasons leading to the causation of crime.
• The real cause of criminality lay in anthropological features of the criminal which helps in demonstrating the functioning of brain in order to establish a co-relationship between criminality and the structure and functioning of brain.
• Lombroso conducted an intensive study of the physical characteristics of his patients and later on of criminals, and he came to a definite conclusion that criminals were physically inferior because of which they developed a tendency for inferior acts.
• Lombroso’s theory devised that there were 3 kinds of criminals: Atavists or hereditary criminals, Insane Criminals, and Criminoids.
• The major contribution of Ferri to the field of criminology is his theory of "Law of Criminal Saturation" which presupposes that the crime is basically the produce of three main factors: Physical or geographical, Anthropological, and Psychological or social.
• Lombroso’s theory was not accepted in the earlier centuries but was widely appreciated however, with the focus being shifted upon the criminal rather than the crime, the Atavist theory of Lombroso was rejected upon the sole reason that no criminal is beyond reformation.
• Neo-classicists asserted that certain categories of offenders such as minors, idiots, insane or incompetent cannot be treated equally as a prudent man in matters of punishment irrespective of the similarity of their criminal act because these persons were incapable of understanding the nature or the conduct of the act committed.
• The difference between the afore-mentioned school revolves mainly around the theory adopted of demonology (in pre-classical) and determinism (Neo-classical).
• The Positive school emphasised the importance upon the personality of the criminal, the mental aspect, the true reason for the causation of crime thereby placing reliance upon the criminal rather than the crime.
• The Positive school placed reliance upon the anthropological features of a criminal.
• The Pre-classical school ignored the true reason for the causation of crime and ignored the mental aspect of the criminal therefore, the reliance was upon the crime rather than the criminal.
• The time period, theorist as well as the theory adopted in the Classical school and Positive school was completely different from one another.
• The classical school imparted equal punishments to all irrespective of the crime committed, the Neo-classical school saw this as unjust and unfair and thus allowed for change to transpire.
• The Neo-classical school allows for mitigating factors to be considered while determining the guilt of an offender.
• In the 18th century, attempts were made to enhance and reform the criminal justice system in order to protect criminals against arbitrary discretion of judges who imparted punishments without applying their judicial mind.
• The pre-classical and the Positive school had completely different approaches not just upon the theories but also the method of punishments, the pre-classical school made the offenders undergo through battles, pelting of stones and was believed that no harm would be caused if the offender was innocent which could be traced by the Ordeal test which was a method of torturing or subjecting the offender to severe torture to determine whether or not such an offender was guilty of the offence which he was charged with, whereas the Positive school completely rejected and opposed the Ordeal test and
• The Pre-classical as stated above determined the guilt of the offender upon the Ordeals which was severe torture but the Neo-classical school was against such torture and termed it as unjust and unfair and the mitigating factors like physical and social environment where the individual was placed must be considered while discharging the criminal liability.
• The classical school based its theory upon the free will concept stating that every offender commits crime for the sole reason of receiving pleasure and causing pain to the victim on account of his own free will.
• The Pre-classical school based on the demonological theory which states that a man is incapable of committing crime and when he does so it shall be presumed that such a crime has been committed because the offender has been possessed by a demon or an evil spirit which compels such a person to commit crime.
• A 19th century doctrine emphasized on scientific method of study and imparted emphasis upon criminal and shifted focus from retribution to corrective method of treatment.
• The offender was made victim to the worships, sacrifices and ordeals by water and fire which were usually prescribed to determine 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".
• The pioneers and the scholars of the classical school of criminology are Cesare Beccaria, Jeremy Bentham and Romilly.
• The classical school focuses on the principle of deterrence in stead of the retributive theory.
• According to the theory of this school, men possess free will and therefore, act as per their pleasure and in order to cause pain (hedonism) to the victim.
• The theory devised by the pre-classical school was rejected by Beccaria, a renowned criminologist who proposed that, the punishment of a crime that is decided should be proportionate and in accordance with its seriousness.
• The greatest achievement of this school of criminology lies in the fact that it recognized and suggested for the development of a substantial and robust criminal policy which would overcome the barrier of allotting arbitrary punishments.