Reviewing History And The Early Laws Criminology Essay

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When looking back upon history we will notice that the early laws were invented for a particular reason or another. One of these reasons obviously is necessity. This means that society in itself had noticed that some conditions were needed amongst the members of that particular society and so the beginning of these laws and punishments arise from this particular fact. We can clearly notice this from Cesare Beccaria's essay, `Of Crimes and Punishments`. The Italian philosopher and politician states that: "Laws are the conditions under which men, naturally independent, united themselves in society." Therefore we can say that the answer of whether society needs laws and punishments is yes, as we all know in Malta we have the Maltese Criminal Code. (`Of Crimes and Punishments, Cesare Beccaria)

The Drafting of Laws

According to Charles De Montesquieu "Every punishment which does not arise from absolute necessity, is tyrannical." Moreover the Criminal Justice System has a particular mechanism: the punishments are decided upon the laws, only legislators make laws and these legislators are there and act in the name of the people. Therefore there should be two groups; one depicting whole of society which is called the prosecution and one representing the accused which is called the defense. Finally the one to decide the verdicts is called the magistrate or judge. According to Beccaria, laws are to be set on this particular principle: "The greatest happiness of the greatest number". This means that a particular issue is decided on whether it is a crime or not, illegal or illegal, by the majority. For example in the Malta, according to the Maltese Criminal Code "who shall procure her own miscarriage, or who shall have consented to the use of the means by which the miscarriage is procured"[Sec.241(2)] is "liable to imprisonment for a term from eighteen months to three years"[Sec.241(1)] while for example in England abortion is legal. (Of Crimes and Punishments, Cesare Beccaria; Maltese Criminal Code)

Prevention:

Apart from the fact that Cesare Beccaria insisted a lot upon drafting laws and punishment throughout society so as to satisfy his principle, the Italian politician and philosopher also had the idea "Of the Means of Preventing Crimes" in his essay. He starts this particular chapter with a very direct statement : "It is better to prevent crimes than to punish them". Beccaria relates his explanation with the principle upon which according to him laws are to be set. He explains that when preventing crimes the level of happiness will increase and the level of misery dicreases. Beccaria makes it clear that his ideas about prevention obviously won't be able to ommit all the disorders in society which can never be totally erased because of the "opposite attractions of pleasure and pain". He also lists some of the methods of prevention which according to him could be useful. The first one he explains is that in every society the laws must be all well-known by the members and they all have to be clear. Beccaria's words are: "let the laws be feared, and the laws only". Another method of prevention that he names is that every society has to benefit from a defensive system which in the case of Malta consists of the police. In our modern society the words of Cesare Beccaria are still very useful. Prevention is a very important characteristic. In the Maltese Criminal Code we can clearly find the exact role and duties of the police: "It is the duty of the Police to preserve public order and peace, to prevent and to detect and investigate offences, to collect evidence, whether against or in favour of the person suspected of having committed that offence, and to bring the offenders, whether principals or accomplices, before the judicial authorities."[Sec.346(1)]

(Of Crimes and Punishments, Cesare Beccaria; Maltese Criminal Code)

Punishment:

Even though Cesare Beccaria insists a lot on the fact that crimes are better prevented than punished, no one can deny the fact that this is not always possible to prevent these disorders which are caused in society because of the pressure of humans and therefore the laws have to be clear for all of society so that every member knows that for a possible crime there is in act a possible punishment. As Beccaria states in his essay: "Therefore there ought to be a fixed proportion between crimes and punishment." These injuries done to society increase in proportion to the increase in population, and so as private interest increases as the members in society increase punishments are also there to "prevent the fatal effects of private interest, without destroying the impelling cause, which is that sensibility inseparable from man." In his essay, `Of Crimes and Punishments` Cesare Beccaria distinguishes between crimes of "the first degree" and those of "the last". This means that a member of society with his criminal act can cause a lot of harm to all of society while that another person with a different act can only cause a bit of harm to one person in society. Therefore "crimes are only to be measured by the injury done to society", irrespective of "whoever" the offender is. For example the act of importing illegal substances is more penalized than the act of importing tobacco and alcohol in an illegal way. The Maltese Criminal Code is mainly based on this idea where we can find a scale of crimes and a matching scale of punishment. This is divided into three sections being Crimes versus Society, for an example revolts, the second one being Crimes versus Nature, for an example homicides and the third section consists mainly of contraventions. Beccaria reasons out that if out that two crimes of different degrees are punished in an equal manner then "there is nothing to deter men from committing the greater as often as it is attended with greater advantage." Another idea which Beccaria talks about in relation to punishments is that according to him punishments are to be exercised by the offender immediately after the criminal act. This is because he thinks that if the punishment is delayed the two ideas, those of the criminal act and of the punishment are not linked by the offender. Another characteristic of punishment named by Beccaria is that punishment should be certain. This means that a person cannot be punished before having been convicted after a trial where with the help of proofs and findings he or she are to be accused of being guilty or not guilty. In Malta clemency is used and pardons and amnesties are given.

(Of Crimes and Punishments, Cesare Beccaria; Maltese Criminal Code)

Prison:

One of the most common punishments is imprisonment which Beccaria describes as "a punishment which differs from all others". He explains this by saying that for a person to be sent to prison, he has to be convicted, meaning that he has to undergo a trial where that particular person has to be found guilty of committing that particular crime with the use of certain proofs and therefore this particular punishment cannot be exercised immediately after the criminal act. Beccaria states that "imprisonment is rather a punishment than a means of securing the person of the accused." Beccaria agrees that people ought to be separated in prisons which is also the case in Malta where prisoners are separated firstly according to gender and secondarily according to the degree of the crime committed.

(Of Crimes and Punishments, Cesare Beccaria; Maltese Criminal Code)

Torture:

As we all know torture was used in the past as a means to convince the accused to confess his act. Cesare Beccaria is of the opinion that torture is not effective for this purpose and he clearly says that he is against its use. One of the reasons is that no one has the right to torture another person neither if that member of society is found guilty, let alone if the individual has not yet been found guilty. Another reason which he names is that "No man can be judged a criminal until he be found guilty" and since that particular person is not guilty yet he has all the right to remain under "public protection." According to Beccaria, with the use of torture there is a risk of punishing a person who is not really guilty of a certain crime. This can happen because weak persons who are being tortured and who are not guilty of that particular crime are bound to say that they are because of the torturing and therefore an innocent person is being accused for nothing while that a strong person who is really guilty of that particular crime may eventually resist to torture. In Malta torture is not exercised.

(Of Crimes and Punishments, Cesare Beccaria; Maltese Criminal Code)

Death Penalty:

"What right, I ask, have men to cut the throats of their fellow-creatures?"

From this particular sentence found in Beccaria's essay we can clearly notice his position on the use of the death penalty. He explains that nobody has the right to kill another person irrespective of the crime he commits. This particular punishment has never prevented or reduced the crimes committed in a particular society. In Malta the death penalty is not used where it has been removed from The Maltese Criminal Code in 1971.

(Of Crimes and Punishments, Cesare Beccaria; Maltese Criminal Code)

Proofs and Findings of Cases:

Beccaria divides the proofs of a crime into two classes. The first class is called perfect. These proofs omit the chance of innocence while the second class is called the imperfect class where they include the chance that the person undergoing that particular trial is not found guilty. For a person to be arrested in Malta the police have to have proof and to send an accused person to court very strong evidence is needed. During a trial the accused person should be informed on the proofs and findings that the court is going to use against him so that that the individual will have the time to prepare his defense: "any act, which is pronounced in open court, shall be open to inspection by any person". [Sec.518] If an accused person is found not guilty, the verdict has to be made public because of the person's reputation. Beccaria also names some crimes which are very difficult to prove, for example abortion. Other two crimes which he lists as difficult to prove are homosexuality and adultery which nowadays are not considered as crimes. Other types of proofs and findings used in court are witnesses and secret accusations are considered as an abuse. According to the Maltese Criminal Code these should be heard viva voce; obviously unless the witness is dead, not to be found or doesn't live in Malta. The last type of proof which Beccaria names in his essay is the reward giving to accomplices which accept the role of informers. These are rewarded by the police and this type of proof is used also in Malta as well as in many of the Criminal Justice Systems.

(Of Crimes and Punishments, Cesare Beccaria; Maltese Criminal Code)

Defence Preparation for court:

Although Cesare Beccaria agrees that the accused should be given enough time to prepare his defense, his idea is that an offender who is accused of a serious crime has to be given less time to prepare his defense than a person who is accused of committing a less serious one. In contrary of what Beccaria states, in Malta the more serious is the punishment, the more time is given to the offender to prepare his defense.

(Of Crimes and Punishments, Cesare Beccaria; Maltese Criminal Code)

Beccaria's ideas conclude that an individual can harm society in various ways. This means that when committing a crime that particular person can provoke serious injuries to the whole of society or else can only harm one person in society. Punishments "may not be an act of violence" no matter what crime that individual has committed but mostly important that they are "proportioned to the crime, and determined by the laws."

(Of Crimes and Punishments, Cesare Beccaria; Maltese Criminal Code)

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