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Criminology: Intellectual History

Early Thinking About Crime And Punishment

The earliest form of punishment was private revenge, in which the victim or the victim's kin retaliated for injury and the community did not interfere. The problem was that private revenge often escalated into blood feuds that could continue for many years until one or the other family was completely wiped out. The loss of life and property became so great that the communities slowly started to impose trials and official penalties on offenders in order to restrict private vengeance.

For many centuries, this community trial and punishment largely was carried out in the context of religion. Criminal acts were said to be affronts to the gods, who might express their anger through plagues, earthquakes, or other desolation. Punishment proportionate to the wrongdoing was said to lessen the gods' anger. For example, the lex talionis ("an eye for an eye and a tooth for a tooth"), as found in the Bible, prescribed this correspondence between crime and punishment. Properly read as "no more than an eye for an eye" it also significantly limited the excesses of private revenge in an attempt to reduce the consequences of the blood feuds.

While these religious and spiritual approaches to crime and punishment dominated early thinking, naturalistic approaches also go back to antiquity. For example, Plato (429?–347 B.C.) argued that the basis of law was the prevailing social morality rather than the laws of the gods. Thus, every action against that morality constituted a crime. In his Republic and Laws he delineated four types of offenses: (1) against religion (theft within a temple, impiety, or disrespect); (2) against the state (treason); (3) against persons (poisoning, use of drugs, witchcraft, sorcery, infliction of injury); and (4) against private property (killing a thief caught stealing at night was not punishable). Plato also made various other arguments: that crime was the product of a faulty education, that the severity of punishment should be determined by the degree of culpability, that criminals are sick individuals who must be cured, and that if they cannot be cured they must be eliminated.

In Aristotle's (384–322 B.C.) view, humans were a synthesis of a body and a soul, endowed with intelligence, emotion, and desire. In his Nicomachean Ethics, Aristotle defined crime as the act of free will, stimulated by desire. Thus he argued that children, idiots, the mentally ill, and individuals in a state of ecstasy should not be held responsible for criminal actions.

According to Aristotle, societal responses to crime could be preventive or repressive. Preventive responses could be: (1) eugenic (some children should be nurtured and educated while others should be abandoned and left to die because of some deformity); (2) demographic (the number of births should be limited, and unnecessary pregnancies should be terminated); and (3) deterrent (punishment should be designed to intimidate the offender and deter the onlookers). Repressive responses originally were limited to allowing private revenge, but later were extended to include such measures as banishment and turning the offender over to the victim's family.

Rome was the source of the world's most powerful legal influences. The Twelve Tables are considered the basis of all Roman law, public and private, and it is thought that they were promulgated about 450 B.C. The tables were secular laws, clearly different from religious or moral rules, and included some forty clauses.

The Eighth Table was similar to a body of criminal law and detailed crimes and their punishments. Intentional homicide, setting fire to a dwelling or harvested crop, treason, and parricide were all were punished by death. The intentional infliction of injury was punished by a fine or by the infliction of a comparable injury if the fine was not paid. Punishment for theft generally was compensation equal to double the value of the stolen goods, although a thief caught in the act could be killed. If the thief was a free man, he could be given to his victim as a slave. Death sentences were also imposed on judges or arbitrators caught taking bribes and on witnesses giving false testimony. However, the sentences could only be carried out with the consent of the whole assembly of citizens, and citizens of Rome were rarely put to death. After the second centuryA.D., exile and banishment became common punishments. The institution of slavery decisively influenced the evolution of the penal system in Rome because the very severe sanctions devised for slaves were later extended to the entire population, with the exception of a limited number of privileged and wealthy citizens. When the population of Rome reached one million, during the second century A.D., permanent tribunals were established, composed of thirty or more jurors presided over by a praetor. At first the jurors had to be of the senatorial class, but gentlemen, wealthy citizens, and soldiers later became eligible. These tribunals were empowered to deal with cases of treason, homicide, adultery, corruption, and kidnapping, and there was no appeal from their decisions.

Additional topics

Law Library - American Law and Legal InformationCrime and Criminal LawCriminology: Intellectual History - Early Thinking About Crime And Punishment, The Middle Ages, The Renaissance, Classical Criminology, Positivist Criminology