Ch 2 Classical Theory Notes PDF

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Prof. Ania Theuer...

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Classical Theory Social Context ❖ Legal changes varied depending on national context ➢ Eg. 17th century England ■ Monarchy challenged → dev. of principles on supremacy of law, fundamental human rights, equality before law, democratic basis of political authority ■ ^^ conflicts over power, authority, and role of law ➢ 18th cy England ■ Enlightenment heavily influenced changes to law in other European centres (Eg. FRA, GER, SPA, ITA) ■ Aimed at rebuilding social structures based on rational principles ■ Rule of law and thinking about society in terms of social contract prevailed

Feudalistic Structures of Economic and Political Systems ❖ Basis of criminal law and punishment questioned ❖ Social Contract: A contract formed by a group of individuals which created society ❖ Feudalism to Capitalism → dev. of classical conceptions of law and cjs ➢ 2 revolutions ■ Economic: based on agriculture → commercial market → industrial economy ■ Political: bourgeoisie challenged aristocracy ➢ Feudal era: land, wealth, power, status helped in what rights applied to you; maintain rule through repression, appeal to tradition and custom ■ Justice system used to reflect personal ties/connections to powerful and personal whim of local ruling class ■ Men - judicial office as extension of wealth and rank ■ Justice was decided by presiding judge, decisions unpredictable ■ Legal system then: highly localized and revolved around existing power ➢ Common law: created due to extension of monarchical power; fused local traditions and customs into general form of law (England) ➢ France: creation of centralized law that acted as national structure for legal system

Capitalism’s Impact on Economic and Political Systems ❖ Merchants unhappy as monarchies grant monopoly trading rights to specific companies (Eg. Hudson’s Bay) → revolution (basic relations of power changing ➢ French Revolution (1789-1799)

➢ American Revolution (1765-1783) ❖ Institutions (Eg. parliament) emerged, new form of law and cjs evolved → to uphold universal law where equality guaranteed ➢ Bureaucratic in nature, more systematic and impersonal

The Individual and the State ❖ ❖ ❖ ❖ ❖

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Individual rights central on political, economic, and social projects of bourgeoisie Ind. rights began to emerge Social class ignored within judicial system Justice subject to rules of law Rule of law ➢ 1. no one is above law ➢ 2. all equal under law ➢ 3. state authority is only legitimate where there are written, publicly disclosed laws in place ➢ 4. these laws are enforced through an established procedure known as due process Capitalists -->universalization of rights against that that is based on hereditary privilege Rule by power → Rule to preserve rules ➢ Everyone equal under law including law makers ■ Class, rank, social background gone in court of law Economic advantages ➢ Private property is a right ➢ Allowed peasants to sell their own work = urbanization → industrialization Rational system of production and exchange demanded predictable, systematic, and regular legal system

Canadian Context ❖ Gov’t structure reflects historical context ➢ BNA (1867) → Canada Act/Constitution (1982) ❖ Legal system described as bijuralism (coexistence of 2 legal traditions) ➢ Common law ■ GB, based on decisions made by royal court (precedent) ➢ Civil law ■ Based on Roman law found in books, proclamations, statutes ❖ Constitution divided authority to make laws b/t parliament and territorial/provincial legislature ➢ P: laws for all Canada assigned by Constitution ➢ T/P: laws made over assigned jurisdiction (applies only to ind. province/territory) ❖ Indigenous rights recognized and protected

Basic Concepts (edit after for duplicates) ❖ ❖ ❖ ❖ ❖ ❖ ❖ ❖

Humans can reason Inds are self-seeking and self-interested Classical theory based on ind. rights, reasoning, and rule of law Emphasizes free will and individual choice (we are responsible for our actions) People believed to have equal ability to act in accordance to what is rational Humans are stakeholders Criminality = make wrong choice Equal protection of ind rights ➢ First principle of justice system ❖ Consensus in society of what constitutes as good/bad ❖ Crime = legal violation ❖ Fundamental objective: protect individual rights and allow free exercise of choice w/o social harm

❖ Crime: ➢ Classical theory rests on notion of social contract b/t ind rights holders and state ➢ Inds given up certain rights to state in return for protection of rights and security of person and property ➢ Legal manifestation of social contract = rule of law ➢ Deterrence: directed at inds and members of society ■ 2 types ● General ● Specific ❖ Analysis focus ➢ Classical cjs focused on criminal act rather than the context w/t which it occurred ➢ Specific offence is focus of judicial punishment rather than the ind or his/her social position ➢ Focus on rational, rair, and universally applied justice system ➢ Focus on codifying and simplifying law so that the majority of people easily understood it

The State, the Individual, and the Rule of Law ❖ Rule of Law: legal manifestation of social contract - everyone treated equally w/o fear or favour in eye of law...