The Evolution of Criminal Law: From Classical to Positive Schools

Posted on Aug 2, 2024 in Law & Jurisprudence

Contemporary Scientific Period

This period in criminal law marks the emergence of criminal law as a science. It was characterized by the struggle between different schools of thought, primarily the Classical School and the Positive School.

Classical School

Francesco Carrara (1805-1888), author of the “Law Course Program,” stands out among classical criminal law authors. Other prominent figures include Von Feuerbach, Filangieri, Kant, and Hegel. These writers were united by their foundation in liberal doctrines and their emphasis on the humane application of penalties.

Main Assumptions of the Classical School:

  1. The offense is a legal entity: Carrara referred to this as a “harmonic dissonance.”
  2. Criminal liability is based on free will.
  3. The penalty is an evil, a punishment.
  4. They believe in the existence of natural rights.
  5. They postulate the abstract logical method.

Positive School

Key figures in the Positive School include:

  • Auguste Comte (1798-1853)
  • Cesare Lombroso (1835-1909): A psychiatrist considered the most important figure in the Positive School. In his 1876 book, “The Male Offender,” he introduced the concept of the “born criminal.”
  • Enrico Ferri (1856-1926): A lawyer whose major work, “Criminal Sociology,” was published in 1881.
  • Rafael Garofalo (1851-1934): A judge known for his 1885 work, “Criminology.”

Main Tenets of the Positive School:

  1. Crime is conceived as a natural phenomenon.
  2. Free will does not exist.
  3. Punishment is not retribution.
  4. The offender is considered abnormal.
  5. The Positive School emphasizes special prevention and dangerousness criteria in criminal justice.
  6. They deny the existence of natural rights.
  7. Their method of study is experimental and causal-explanatory.
  8. The Positive School brought crime into the realm of empirical science, considering it a natural and social phenomenon. This led to a more critical and empirical approach to criminology.

La Terza Scuola (Third School)

This eclectic school, emerging from the Positive School, is represented by figures like Carnevale, Alimena, and Manzini. They advocated for measures beyond punishment to address offender dangerousness. While they didn’t believe in the born criminal or free will, they differed from Positivists by rejecting the responsibility and punishment of the not criminally responsible. They distinguished between culpable individuals, subject to penalties for deterrence, and non-culpable individuals, subject to security measures for social prevention.

Von Franz Liszt

Von Liszt defined criminal law as a set of rules established by the State, defining crime and punishment as legitimate consequences.

Relationship with Other Branches of Law

1. Constitutional Law

  • Article 19 No. 3 paragraph 7°: Establishes the principle of legality.
  • Subsection 8: Enshrines the principle of lex certa (certainty of law).
  • Principle of nulla poena sine lege: No punishment without a prior law and fair trial (Article 19 N ° 3 incs. 2, 3, 4, and 5).
  • Prohibition of retroactive penal law: (Article 19 No. 3 paragraph 6 and Article 4 of the Code of Criminal Procedure).
  • Judicial Compensation Error: (Article 19 No. 7, point i).
  • Protection of personal freedom: Various provisions link constitutional rights to both substantive and procedural criminal law.

2. Civil Law

  • Civil law defines legal rights, while criminal law criminalizes their violation.
  • Both branches use terms like “crime” and “tort,” but with different meanings.
  • Criminal law relies solely on legislation, while civil law also considers custom.

3. Procedural Law (CPP)

  • Regulates criminal proceedings and ensures due process.
  • Criminalizes conduct prejudicial to the proper functioning of criminal and civil procedure.

4. Administrative Law

  • Criminal law sanctions violations of legal rights established under administrative law, such as the principle of administrative probity and the regular functioning of public services.

5. International Law

  • Extradition: The transfer of an individual from one state to another for prosecution or punishment.
  • Territoriality and Extraterritoriality: Defines the application of criminal law in space.
  • Criminalizes violations of rights recognized by international law, such as diplomatic immunity (Article 120 of the Criminal Code).